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APPEAL OF THE PLANNING COMMISSION’S DENIAL OF A USE PERMIT TO UPGRADE FROM THE OFF-SALE OF BEER AND WINE TO THE OFF-SALE OF GENERAL ALCOHOLIC BEVERAGES IN AN EXISTING CONVENIENCE STORE AT 7906 N. EL DORADO STREET (P15-0453) - NOTE: PUBLIC HEARING CONTINUED FROM COUNCIL MEETING OF MAY 10, 2016
recommended action
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 from the off-sale of beer and wine to the off-sale of general alcoholic beverages in an existing convenience store at 7906 N. El Dorado Street.
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Summary
This appeal was originally scheduled to be considered by the City Council on May 10, 2016; however, at the request of the applicant’s attorney and with the Council’s concurrence, the matter was continued to July 12, 2016. The City Council is asked to consider an appeal submitted by the business owner’s attorney. On March 24, 2016, the Planning Commission denied a Use Permit application that would have allowed an upgrade from the off-sale of beer and wine to the off-sale of general alcoholic beverages in an existing convenience store at 7906 N. El Dorado Street (Attachment A - Appeal Letter). Staff recommended denial of the Use Permit, based on the underlying facts and prepared findings for denial due to high crime in the area and an overconcentration of existing alcohol licenses.
Following public testimony, the Planning Commission deliberated, and determined that it could not support the request and the application was denied.
DISCUSSION
Background
The approximately 0.5-acre subject site, containing the existing 2,100-square foot convenience store and its canopy-covered gas pumps, is located at the northeast corner of El Dorado Street and Hammer Lane in north Stockton. The subject site is located in the southwest corner of an approximately 6.8-acre shopping center. The center is occupied by a variety of commercial and service uses, is zoned CG (Commercial, General), and is bounded to the:
• north across Iris Avenue by duplexes and a triplex zoned RM (Residential, Medium Density;
• east by a senior residential care facility zoned RH (Residential, High Density);
• south across Hammer Lane by a 318-unit planned residential development zoned RH; and
• west across El Dorado Street by a multi-family residential complex zoned RH (Attachment B - Location Map and Aerial Photograph).
Project Description
Use Permit No. UP2-76 was approved by the Planning Commission in December of 1975 and issued on January 9, 1976, to allow the off-sale of beer and wine in a convenience store with gasoline sales. The convenience store has been in operation since that time. The applicant purchased the business in 2002 and has submitted the Use Permit application in order to satisfy her customers’ needs. The applicant proposes to devote no more than 20 percent of the store’s gross floor area to the sale, display, and/or storage of alcohol, thereby avoiding classification as a “liquor store,” pursuant to Section 16.240.020 of the Stockton Municipal Code (SMC). According to the applicant, beer and wine will continue to be displayed in an existing walk-in cooler on the north side of the store (Exhibit 1 to the Proposed Resolution - Site and Floor Plans). General alcoholic beverages would be displayed in a locked cabinet behind the register in the center of the store. The operator would continue to offer other merchandise for sale, including chips, snacks, candies, various grocery items, and bottled/canned beverages in the store. The business is currently open 24 hours per day, seven days a week, and no change is proposed if the Use Permit is approved.
As the City Council is aware, the Planning Division recently completed processing a comprehensive Code Amendment to Title 16 of the SMC related to alcoholic beverage sales. The noted Code Amendment was approved by the City Council on January 26, 2016, and became effective on March 26, 2016. Because the Use Permit was deemed complete for processing and scheduled for action by the Planning Commission before the effective date of the Code Amendment, it is being processed in accordance with the previously-applicable provisions of the Development Code, and the findings proposed for the Council’s action are consistent with the previous code.
Census Tract Overconcentration
The project site, located at the northeast corner of El Dorado Street and Hammer Lane, is located in Census Tract 33.10. Based upon the population in that geographic area, ABC has determined that three (3) off-sale alcoholic beverage establishments are allowed within the Census Tract. There are currently four (4) active off-sale alcohol establishments within this Census Tract, including the applicant’s license for the off-sale of beer and wine in the existing convenience store. Two of the other three off-sale licenses in the census tract are located within the shopping center in which the subject use is located: the Lion Supermarket (7924 N. El Dorado Street; Type 20 license) and A-1 Market (8024 N. El Dorado Street; Type 21 license). The third off-sale license in the census tract is located in the shopping center that is located at the northeast corner of Lower Sacramento Road and Hammer Lane: Food 4 Less (789 W. Hammer Lane; Type 21 license). The shopping center containing the subject site also has one on-sale alcohol license: Pho Lucky Restaurant (8034 N. El Dorado Street; Type 41 license - on-sale of beer and wine in an eating place). The larger area within 3,300 feet of the subject site has 21 existing alcohol licenses: 11 of on-sale and 10 for off-sale (Attachment C - Location of Active On-Sale and Off-Sale Alcohol Licenses).
When the applicant submitted her application, she did not indicate to staff whether she would be seeking a new ABC license for the site or converting her existing license. City staff contacted ABC staff to determine whether a finding of Public Convenience or Necessity (PCN) would be required for the project. ABC indicated that approving the proposed off-sale general alcohol license would exacerbate the existing overconcentration of such licenses in the area if the applicant retained her existing license and, therefore, a finding of Public Convenience or Necessity (PCN) would be required from the Planning Commission in order for ABC to issue an off-sale alcohol license for the subject site. On the other hand, if the applicant canceled the existing alcohol license in conjunction with securing a new license, a finding of PCN would not be required, because there would not be a net increase in the number of off-sale licenses in the census tract. The applicant subsequently advised staff that she would cancel her existing license, thereby eliminating the need for a PCN finding if the Use Permit should be approved.
There are currently 21 alcohol-related uses (11 on-sale and 10 off-sale) within a 3,300-foot radius of the project site. Based upon those numbers, staff has determined that this neighborhood is already served by an adequate number of alcohol establishments. Upgrading the existing license (from the off-sale of beer and wine to the off-sale of general alcoholic beverages) has the potential to increase the intensity of the use and lead to additional crimes, loitering, vandalism, panhandling, drunkenness, and vagrancy in the neighborhood and would likely result in an increase in calls for police service, which would deplete police resources in this area of the City.
Proximity to Schools
Former Section 16.80.040.A of the SMC required a minimum separation of 300 feet between an establishment with the off-sale of alcoholic beverages and public or private academic schools for students in kindergarten through 12th grade. The nearest school, Pulliam Elementary School (Stockton Unified School District), is approximately 1,100 feet southeast of the project site. The next closest school, Kennedy Elementary School (Stockton Unified School District), is located approximately 2,500 feet north of the project site. There are also three other elementary schools in the general vicinity of the subject site; however, they are all located over 3,400 feet from the project site. In its response to the application referral for the project, staff from Stockton Unified School District indicated that it had no comment on the project. The proposed use, therefore, complies with the noted minimum separation standard.
Crime Reporting Districts
According to the Police Department’s analysis of crime report statistics that were being used at the time the Use Permit application was originally processed, the average number of crimes reported in all of the Citywide Crime Reporting Districts (CRD) is 94. The project site is located in CRD No. 324. The average number of crimes reported in this district is 178, which exceeds the average by 89%. The Police Department considers those districts with an average of 20% or more above the Citywide average to be high crime reporting districts. Therefore, the project site is considered to be located in a high crime reporting district. As noted, the subject site is located at the northeast corner of Hammer Lane and El Dorado Street. The other three corners of this intersection are located in CRD Nos. 323, 337, and 335 (northwest, southwest, and southeast corners). According to the Police Department’s crime report statistics, all three of these CRDs are considered high crime reporting districts that are 56%, 101%, and 70% above the average, respectively. As a result, intensifying an existing alcohol-related use in the shopping center and the surrounding neighborhood has the potential to increase vagrancy, public drunkenness, and other illegal activities and can also be expected to result in additional calls for police service and is a primary reason why staff is recommending denial of the appeal of the Planning Commission’s denial of the Use Permit.
Problem Use
There are seven required general findings in former Section 16.168.050.A of the SMC that must be considered in order to approve the proposed use. The general findings are comprised of compliance with all applicable provisions in the SMC, maintaining the integrity and character of the zoning district, compliance with the General Plan objectives/policies, any applicable Specific Plan or Master Development Plan, adequate utility services for the proposed use, consideration of public convenience, health or safety, land use compatibility, and the provision of the California Environmental Quality Act (CEQA) Guidelines.
In addition, the off-sale of an alcoholic beverage establishment constitutes a “Problem Use” and, as such, requires three additional findings, pursuant to previous SMC Section 16.168.050.B. In accordance with previous Section 16.240.020 of the SMC, “Problem Uses” are defined as “Uses that have a blighting and/or deteriorating effect upon their surroundings, and which may be dispersed to minimize their adverse impacts.” The proposed use would not represent a dispersal of this problem use, but would, instead, intensify an existing off-sale alcohol use in an already over-concentrated census tract. As a result, the required findings for “Problem Uses” cannot be made for the following reasons:
1. The proposed use is likely to interfere with the comfortable enjoyment of life or property in the area, because the applicant has failed to provide any evidence that adding additional alcoholic beverage sales would not negatively impact the area. She has stated that no more than 20% of the store floor area will be dedicated to alcohol sale, display, and/or storage of alcohol; however, that restriction is not intended to reduce off-site impacts, but is simply a way to differentiate two similar land uses: convenience stores/mini marts and liquor stores. According to the Police Department’s crime report statistics, the average number of crimes reported in all of the Citywide Crime Reporting Districts is 94. The project site is located in Crime Reporting District No. 324. The average number of crimes reported in this district is 178. The average number of crimes in the district exceeds the average number of crimes for all reporting districts by 89 percent. As a result, the intensification of the existing off-sale alcohol use in an already over-concentrated census tract would likely have the potential to increase vagrancy, illegal activities, and can be expected to result in additional calls for police service.
2. The proposed use will increase or encourage the deterioration or blight of the area, because there are 10 established off-sale alcohol outlets and an additional 11 on-sale alcohol establishments in the vicinity of the proposed use that provide a variety of alcohol products and various grocery items. Clearly, the area immediately surrounding the proposed use is fully served by the existing alcohol sales outlets and the proposed use would not enhance public convenience or necessity. Instead, intensifying an existing off-sale alcohol use in an over-concentrated census tract would have the potential to create an unsafe situation identical to those in other neighborhoods with similar crimes, and other illegal activities, including drunkenness, increase or encourage deterioration or blighting in the area.
3. The intensification of an existing off-sale alcohol use in the area will not be contrary to any program of neighborhood conservation, improvement, or redevelopment, either residential or nonresidential, because there are no such programs in place in the subject neighborhood. Approving the subject Use Permit will, therefore, not be contrary to any program of neighborhood conservation, improvement, or redevelopment. However, the intensified off-sale alcohol use would be contrary to the conservation, improvement, and redevelopment of the area, because such establishments have the potential to increase alcohol-related illegal activities, which would adversely affect the quality of life for area residents.
In summary, the proposal, if approved, would intensify an existing problem use in a neighborhood that, by both ABC standards and City code, is already sufficiently served by existing alcohol retailers. The required findings for problem uses cannot be made in the affirmative, because this neighborhood already has an adequate number of alcohol sales outlets and a more intensive off-sale alcohol outlet would have the potential to result in adverse impacts upon the general health and welfare of the neighborhood. As such, staff recommends that Council deny the appeal and uphold the Planning Commission’s denial of the Use Permit application.
Planning Commission Action
At the March 24, 2016 public hearing, the applicant’s attorney described the applicant’s long history of operating the subject business with the off-sale of beer and wine and indicated that the applicant had a very good track record and no issues or problems that would have warranted modification or revocation of the site’s existing ABC license. He indicated that the applicant would surrender her existing alcohol license to ABC if the subject Use Permit was approved, thereby resulting in no net increase in the number of alcohol licenses in the Census Tract. The applicant’s attorney also noted that there were no nearby schools in the vicinity of the project site, that the proposed use was not for a liquor store, and that high crime statistics in the area did not reflect the applicant’s long history of compliance with applicable regulations. The attorney made reference to a letter that he had submitted to the Planning Commission via staff (Attachment D - Attorney’s Letter to Planning Commission) supporting the applicant’s requested Use Permit and submitted a petition with the names of approximately 600 of the applicant’s customers in support of the Use Permit (Attachment E - Petition of Support). One person spoke in opposition to the project, citing the number of existing alcohol businesses in the area, the 24-hour operation of the business, and the number of crimes in the area.
Following public testimony, members of the Planning Commission discussed the project and expressed concerns regarding both the number of alcohol businesses in the area and the high crime statistics in the area surrounding the project site. The Commission also noted the difficulty of making all of the required findings for approval of the project. At the conclusion of the hearing, a motion was approved (6-0; Davie absent) to deny the Use Permit.
On March 29, 2016, the applicant’s attorney filed an appeal of the Planning Commission’s denial of the Use Permit to allow an upgrade from the off-sale of beer and wine to the off-sale of general alcoholic beverages in an existing convenience store at 7906 N. El Dorado Street. Staff is recommending that the City Council deny the appeal and uphold the decision of the Planning Commission to deny the Use Permit.
The City Council may uphold the Commission’s action and deny the appeal with a majority vote or override the Commission’s action with five concurring votes, in accordance with the provisions of SMC Section 16.100.040.G.1.
ENVIRONMENTAL REVIEW
Denial of the application does not constitute a project under the California Environmental Quality Act (CEQA) and, therefore, no environmental analysis is needed for the proposed use.
FINANCIAL SUMMARY
There is no anticipated financial impact to the City as a result of the project.
Attachment A - Appeal Letter
Attachment B - Location Map and Aerial Photograph
Attachment C - Location of Active On-Sale and Off-Sale Alcohol Licenses
Attachment D - Attorney’s Letter to Planning Commission
Attachment E - Petition of Support