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REQUEST FOR A USE PERMIT AND WAIVER FOR THE OFF-SALE OF ALCOHOLIC BEVERAGES AT A PROPOSED GROCERY STORE, LOCATED AT 5308 PACIFIC AVENUE (P21-0909)
recommended action
RECOMMENDATION
Staff recommends that the Planning Commission adopt a resolution approving the request for the off-sale of alcoholic beverages for a proposed grocery store within the existing Sherwood Mall Shopping Center, located at 5308 Pacific Avenue, based on the findings and subject to the conditions in the proposed resolution.
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Summary
The applicant, Kyle Godat of Brixton Capital, on behalf of the owner, Brixton Sherwood LLC, is requesting a California Department of Alcoholic Beverage Control (ABC) Type 20 license for the off-sale of beer and wine, which allows for the sale of beer and wine for consumption off the premises where sold.
The primary use is a proposed 26,800 square foot grocery store. The sale of beer and wine would be incidental to the primary use. The proposed grocery store provides a wide selection of fresh produce, bulk foods, meat and seafood, deli, baked goods, dairy products, frozen foods, natural body care and household items.
As reflected in the staff report below, the proposal for the off-sale of alcoholic beverages complies with the location restriction related to proximity to other off-sales alcoholic beverage sales establishments. The site is located within a Crime Reporting District (CRD) (No. 0330) which has an average number of crimes that exceed the average number of crimes for all CRDs citywide by more than 20 percent. The applicant has requested a Waiver for the site located within a CRD with more than 20 percent of the number of crimes for all CRDs citywide. The project location provides food shopping convenience for the general public. Therefore, staff recommends approval of the Waiver and Use Permit request.
DISCUSSION
Background
The site is located within the Sherwood Mall Shopping Center and has a zoning designation of Commercial Large-Scale (CL) with a General Plan designation of Commercial, as shown in Attachment A. The site is bound to the north, south, and east by various commercial uses and buildings within the Large-Scale Commercial (CL) zoning district, and to the west by Delta College which is zoned Public Facilities (PF).
Present Situation
The applicant has applied for a Use Permit for an off-sale alcoholic beverage sales, Type 20 license, which allows for only the sale of beer and wine, as well as a Waiver request as the project is located within a Crime Reporting District that exceeds the average number of crimes for all reporting districts citywide more than 20 percent. As stated earlier, the primary use is a proposed grocery store and the sale of beer and wine would be incidental to the primary use.
The proposed grocery store area is approximately 26,500 square feet (Attachment B - Existing Site Plan and Floor Plan). The floor plan shows wine and beer display and coolers and storage at approximately 150 square feet of floor area. The proposed business hours are 7 AM to 10 PM, seven days a week. ABC limits the sale of alcoholic beverages to 6 AM to 2 AM.
In the CL zone, SMC 16.20.020, Table 2-2 permits consideration of the proposed alcoholic beverage sales under an application for a Commission Use Permit. While SMC 16.80.040(D)(3)(b)(ii) allows grocers and retail stores over 40,000 square feet to sell alcohol for off-site consumption by-right, the proposed project is 26,800 square foot which does not meet the required minimum grocery store square footage of 40,000. Therefore, a Commission Use Permit is required.
The project is exempt from the location requirements set forth in SMC 16.80.040.(D)(2)(b)(i), which state that new alcoholic beverage sales activities or establishments (on-sale and off-sale) may be exempt from location restrictions if they are 10,000 square feet or more with a maximum of 10 percent of its gross floor area devoted to the sale, display, and/or storage of alcohol, including, but not limited to, supermarkets and drug stores, which do not sell alcoholic beverages as their principal business. The proposed project is larger than 10,000 square feet and less than 10 percent of gross floor area dedicated to alcohol display and storage area.
The proposed project is subject to SMC 16.80.040(D)(2)(d)(ii) Off-sale of alcoholic beverage sales establishments, which states that:
(A) Establishment shall not be located 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; or
(B) Establishment shall not be located in an area within 500 feet of an existing off-sale alcoholic beverage establishment or any location that would lead to the grouping of more than four (4) off-sale alcoholic beverage establishments within a 1,000-foot radius.
Each application shall be analyzed by the applicable Review Authority to ensure that the application is consistent with the purpose and intent of this provision. The applicable Review Authority has the discretion to waive these restrictions to promote and support local economic business growth, throughout the City including areas such as: the Downtown District, Miracle Mile, and Yosemite Shopping Center.
The project site is in Census Tract No. 33.05. According to the California Department of Alcohol Beverage Control (ABC), the census tract has zero (0) off-sale licenses and, therefore, is not over-concentrated.
Staff Analysis
When evaluating applications for new alcoholic beverage sales establishments, the proposed Commission Use Permit must be reviewed against the location restrictions identified in SMC Section 16.80.040 (Alcoholic Beverage Sales - On-Sale and Off-Sale):
• Crime Reporting District - SMC Section 16.80.040(D)(2)(d)(ii)(a)
Per this SMC section, the off-sale of alcoholic beverages should not be located in a Crime Reporting District (CRD) where the average number of crimes in that district exceeds the average number of crimes for all Crime Reporting Districts citywide by more than 20 percent.
The data provided by the Stockton Police Department for the Crime Reporting District for total crimes from 9/1/2020 to 9/1/2021 is 111 and exceeds the average number at 236% of the city average crimes. The proposed use does not comply with the CRD location restriction. (Attachment C - Crime Reporting Data and Calls for Service).
The Stockton Police Department provided data for site-specific crime reports that show 111 crime reports between September 1, 2020, and September 1, 2021. Of the 111 crimes at the project site, the data indicates that the nature of the crimes reported are largely related to theft. The crime reporting district covers the Sherwood Mall shopping center. Crimes reported can be skewed higher in areas where there is a concentration of retail establishments. The Planning Commission has the discretion to waive these restrictions to promote and support local economic business growth, throughout the City.
• Existing Off-sale Licenses - SMC Section 16.80.040(D)(2)(ii)(b)
Proximity to Other Alcoholic Beverage Sales Establishments: Off-sale alcohol establishments should not be located within 500 feet of an existing off-sale alcoholic beverage establishment or in a location that would lead to the grouping of more than four (4) off-sale alcoholic beverage establishments within a 1,000-foot radius.
According to ABC’s records, there are zero (0) off-sale alcohol establishment within a 500-foot radius of the subject site (Attachment D - Existing off-sale alcohol license within 500 feet). There are no additional alcoholic beverage establishments within a 1,000-foot radius of the proposed establishment (Attachment E - Existing off-sale alcohol license within 1,000 feet). The proposed project does comply with both the separation and grouping requirements.
Required Findings
To approve the Use Permit, the Planning Commission must make all findings under SMC Section 16.168.050(A) (General Findings), Section 16.168.050(B) (Problem Uses), and Section 16.168.050(C) (Alcoholic Beverages). As indicated in the staff report’s Proposed Resolution, the subject use is allowed in the CL zone with an approved Use Permit and complies with applicable provisions of the Development Code.
When considering the Use Permit to allow off-sale of beer and wine, the Commission action is guided by the following criteria:
Use Permit: General Findings, Problem Uses and Alcoholic Beverages
General Findings.
There are seven required General Findings in SMC Section 16.168.050.A. They require (1) compliance with all applicable provisions in the SMC; (2) maintaining the integrity and character of the applicable zoning district; (3) consistency with applicable General Plan objectives and policies; (f) physical suitability of the site for the proposed use; (5) not endangering or jeopardizing the public health, safety, peace, or general welfare of the public; (6) compatibility with surrounding uses; and (7) consistency with the California Environmental Quality Act.
Staff recommends that all required General Findings can be made to support the project, as evidenced in the attached resolution. The proposed 26,800 SF grocery store use is allowed in the CL zoning district, and will provide a wide selection of fresh produce, bulk foods, meat and seafood, deli, baked goods, dairy products, frozen foods, natural body care and household items. The sale of beer and wine would be incidental to the primary use. The project location provides food shopping convenience for the general public; it is consistent with the goals, objectives and policies in the General Plan; the site is physically suitable for 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.
In addition to the General Findings, Section 16.168.050(B) contains the following three specific Findings for Problem Uses; (1) the proposed use is not likely to interfere with the comfortable enjoyment of life or property in the area; (2) the proposed use will not increase or encourage the deterioration or blight of the area; and (3) the proposed use will not be contrary to any program of neighborhood conservation, improvement, or redevelopment, either residential or nonresidential.
As it pertains to problem uses, staff recommends that (1) the proposed use will be within an existing, established retail center and will not interfere with the comfortable enjoyment of life or property in the area; (2) the proposed grocery store use with the incidental use of off sale alcohol (beer and wine) will be located in a vacant retail space; and, (3) the use is going in to an existing shopping mall and will provide additional services to the neighborhood.
Alcoholic Beverages.
In addition to the General Findings and Problem Use Findings, the following findings shall be made for all uses which incorporate “alcoholic beverage sales activity” as defined in Section 16.80.040. Section 16.168.050.C contains the four specific Findings for Alcoholic Beverages. The Findings address the project’s potential to result in nuisance activities on and in proximity to the subject. The completion of a training course in Licensee Education on Alcohol and Drugs (LEAD), compliance with all provisions of local, state and federal laws, rules, and regulations and required criteria for a Public Convenience or Necessity (PCN) Finding, is required.
As conditioned, (1) the grocery store will endure to limit potential nuisance and criminal activity, littering, graffiti, and excessive loitering. The Applicant has agreed to comply with all conditions of approval, (2) will complete the approved course for responsible beverages sales, (3) will comply will all provisions of local, state and federal laws, regulations, rules, policies or orders enforced by the City of Stockton and ABC; and, this location does not require a Public Convenience and Necessity determination as there are no existing off-sale licenses within the census tract.
Waiver
The applicant is requesting a waiver for the Crime Reporting District - SMC Section 16.80.040(D)(2)(d)(ii)(A). The Waiver contains the following Findings; (1) The granting of the waiver shall enable the site to be utilized so that specific standards can be addressed without creating undue hardship; (2) The granting of the waiver shall allow for the economic viability and use of the site; (3) The granting of the waiver, with conditions that are imposed, will not be detrimental to the public convenience, health, interest, safety, or general welfare of the City or injurious to the property or improvements in the zone or neighborhood in which the property is located; (4) The granting of the waiver will be consistent with the general land uses, objectives, policies, and programs of the General Plan, any applicable specific plan, precise road plan, or master development plan, and the intent of this Development Code; (5) The granting of the waiver will not conflict with applicable provisions of the latest edition of the California Building Code and Fire Code and other applicable Federal, State, and local laws and regulations; and (6) The granting of the waiver will be in compliance with the provisions of the California Environmental Quality Act (CEQA) and the City’s CEQA Guidelines. (Ord. 023-07 C.S. § 120; prior code § 16-590.040).
Staff recommends that all required Waiver Findings can be made to support the project, as evidenced in the attached resolution. The proposed 26,800 SF grocery store use is allowed in the CL zoning district, it will provide a wide selection of fresh produce, bulk foods, meat and seafood, deli, baked goods, dairy products, frozen foods, natural body care and household items. The sale of beer and wine would be incidental to the primary use. Of the 111 crimes at the project site, the data indicates that the nature of the crimes reported are largely related to theft. The crime reporting district covers the shopping mall site. Crimes reported can be skewed higher in areas where there is a concentration of retail establishments. The project location provides food shopping convenience for the general public; it is consistent with the goals, objectives and policies in the General Plan; the site is physically suitable for 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
In recent years, shopping malls have evolved to incorporate mixed-use adaptations such as gyms, grocery stores, dining and entertainment facilities. The establishment of the grocery store with the incidental use of off sale alcohol use (beer and wine) will allow for development of a vacant tenant space within Sherwood Mall, and its operation will contribute to the enjoyment of the neighborhood by providing convenient access to other merchandise.
Public Comments
Notice for this item was published in the Record on November 8, 2021, and a notice has been sent to all property owners within a 300-foot radius of 5308 Pacific Avenue, on November 8, 2021. As of the issuance of this report, staff has not received any comments from the public on this project.
Attachment A - Location, General Plan Map, and Zoning Map
Attachment B - Existing Site Plan and Floor Plan
Attachment C - Crime Reporting Data and Calls for Service
Attachment D - Existing off-sale alcohol license within 500 feet
Attachment E - Existing off-sale alcohol license within 1000 feet
This staff report was prepared by June Cowles, AICP, Contract Senior Planner, (209) 937-8266 or June.cowles.ctr@stocktonca.gov