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APPEAL OF THE PLANNING COMMISSION'S DENIAL OF THE REQUEST FOR A USE PERMIT TO UPGRADE THE OFF-SALE OF BEER AND WINE TO THE OFF-SALE OF GENERAL ALCOHOLIC BEVERAGES IN AN EXISTING 1,500 SQUARE-FOOT CONVENIENCE STORE AT 4511 PACIFIC AVENUE (P13-163)
RECOMMENDATION
It is recommended that the City Council adopt a resolution denying the appeal and upholding the Planning Commission's denial of the request for a Use Permit to upgrade the off-sale of beer and wine (Type 20 License) to the off-sale of general alcoholic beverages (Type 21 License) in an existing convenience store at 4511 Pacific Avenue.
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Summary
The City Council is asked to consider an appeal submitted by the business owner, Karnvir Rana, of the Planning Commission's November 14, 2013 denial of a Use Permit application, which would have allowed the applicant to acquire a general alcoholic beverage sales license to replace the existing beer and wine sales license. Staff recommended denial of the Use Permit based on the underlying facts and an inability to establish findings of approval. Because the Planning Commission was unable to make affirmative findings to support the request, the application was denied.
DISCUSSION
Background
In 1981, the business, under its former ownership, was issued a Use Permit (UP19-81) to allow the retail sale of gasoline and a convenience store with the off-sale of beer and wine (Type 20 License) to be issued by the California Department of Alcoholic Beverage Control (ABC).
The applicant purchased the business in 2010 and submitted a Use Permit application to expand the sale of alcohol to include general alcoholic beverages. While reviewing the application, staff discovered that the San Joaquin County Office of Education "One School" was operating in a building on the west side of the subject site, less than one foot away from the building that contains the existing convenience store.
Development Code Section 16.80.040 adopted in 2004 requires establishments with the off-sale of alcoholic beverages to be located at least 300 feet from any public or private academic school. The noted separation requirement had not been adopted at the time the school use was initiated in 1994, so, the off-sale of beer and wine in the convenience store became a legal non-conforming with respect to the Code's minimum separation requirement. At that time, the applicant was notified of this separation requirement and decided to submit a Variance application to waive this requirement. However, both Use Permit and Variance applications were denied by the Planning Commission in October 14, 2010.
Present Situation
Recently, "One School" was closed when its lease expired in June of 2013. Now, there are no public or private academic school with grades kindergarten through 12th located within 300 feet from the subject site. As such, the applicant resubmitted a Use Permit application in order to upgrade the off-sale of beer and wine to the off-sale of general alcohol in the convenience store.
The application for the new Use Permit was received on August 27, 2013. The Planning Commission considered the Use Permit application at its regular meeting of November 14, 2013 and following a public hearing, which included the applicant's testimony, the Commission voted 7-0 to deny the application. As expressed in the adopted findings of denial, the Planning Commission was unable to determine that the requested action would not be detrimental to the public welfare or that it satisfied other necessary findings for retail alcohol sales. That determination was informed by the over-concentration of similar alcoholic beverage sales outlet in this census tract, the availability of similar products at similar outlets nearby, and the proximity of other "problem uses" in the area.
On November 22, 2013, the applicant submitted an appeal to the Planning Commission's denial (Attachment A - Appeal Letter).
Location
The business is located at 4511 Pacific Avenue (Attachment B-Project Location Maps). The approximately 0.3-acre site is located at the northwest side of Pacific Avenue and Rosemarie Lane. The project site contains an existing convenience store on the northwest side of the property approximately 1,500 square-foot in size and three (3) existing gas pumps with six (6) fuel dispensers under a canopy located on the east side of the subject site. The surrounding neighborhood is comprised of fast food restaurants, single-family residences and various retail and office uses.
Operation
According to the application, beer and wine would be stored in a walk-in cooler on the north side of the premises and bottles of other alcoholic beverages would be stored on shelves behind the cashier. The store would continue to sell chips, snacks, candies coffees, cigarettes and bottled/canned beverages. The current hours of operation for the convenience store are from 7:00 a.m. until 11 p.m., Monday through Thursday and Sunday and from 7:00 a.m. to 12:00 midnight, Friday and Saturday.
Cal. Dept. of Alcoholic Beverage Control (ABC)
The California Department of Alcoholic Beverage Control (ABC) generally regulates alcohol sales licenses using a population-based ratio to determine how many sales licenses should be located in a given census tract. Once an ABC-determined concentration is met, additional licenses may not be issued by ABC unless the City adopts a specific finding of public convenience and necessity. This particular application did not require such a finding because it would have been contingent upon surrender of the existing Type 20 license and, as a result, there would not have been a net increase in the number of licenses in the census tract or increase in concentration.
The project site is located within Census Tract 33.08, which is bound by March Lane to the north, El Dorado Street to the east, the Calaveras River to the south, and Georgetown Place and Pacific Avenue to the west. ABC used the 2010 U.S. Census Bureau statistics which indicated a population of 1,590 in Census Tract 33.08. Based on this population, ABC determined that one (1) off-sale license should be allowed in this census tract. ABC does not apply separate regulations for Type 20 or Type 21 licenses. There are currently two (2) active off-sale licenses in the census tract, including the Type 20 license held by the applicant. The other off-sale license is located at 660 West March Lane (Walgreens). The license type held by the other location as well as the distance of this location from the project site is outlined in the following table.
License Type |
Business / Address |
Distance from Project Site |
20 |
Convenience Store (apl.)/4511 Pacific Avenue |
- |
20 |
Walgreens /660 W March Lane |
410 ft. |
For the Council's information, although there are no public or private schools within 300 feet of the project site, the nearest San Joaquin County Office of Education "One School" at 4635 Georgetown Place, Suite A is approximately 420 feet from the subject site.
Planning Commission Findings
Development Code Section 16.168.050(a) requires that the Planning Commission make specific findings of fact in order to issue a Use Permit and requests that findings of fact be made on the following considerations: the integrity and character of the neighborhood; General Plan and Development Code consistency; suitability of the site and its compatibility with other uses; and the impact of the operation on the public convenience, health, interest, safety or general welfare of the area. (Attachment C - November 14, 2013 Planning Commission Staff Report).
Section 16.168.050(b) requires additional findings for uses defined as "problem uses" such as the sale of alcoholic beverages, which include: that the proposed use is not likely to interfere with the comfortable enjoyment of life or property in the area; the proposed use will not increase or encourage deterioration or blight in the area; and the use will not be contrary to any neighborhood program of conservation or redevelopment.
As expressed in the attached findings (Attachment D - Findings for Denial), the Planning Commission was unable to make affirmative findings to issue the Use Permit. Specifically, the Planning Commission found that the intensification of an existing alcoholic beverage sales outlet in an area that is already over-concentrated (by ABC standards) would be likely to produce additional calls for police services and further strain police resources. In particular, the Commission looked at the potential for alcohol-related off-site impacts such as noise, public drunkenness, panhandling, loitering and vandalism which could be exacerbated by allowing the applicant to upgrade to the off-sale of general alcohol in the convenience store. The above-noted reasons prevented the Commission from making affirmative findings related to the problem use.
Staff now recommends that the Council deny the appeal and uphold the decision of the Planning Commission denying the Use Permit.
VOTES REQUIRED
Five (5) votes of the City Council are necessary to overturn the decision of the Planning Commission and approve the application.
FINANCIAL SUMMARY
There is no anticipated financial impact to the City of Stockton as a result of the project.
Attachment A - Appeal Letter
Attachment B - Project Location Maps
Attachment C - November 14, 2013 Planning Commission Staff Report
Attachment D - Findings for Denial