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APPEAL OF THE PLANNING COMMISSION’S DENIAL OF THE REQUEST FOR A USE PERMIT FOR PROPERTY LOCATED AT 3440 EAST MAIN STREET (P15-0420)
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RECOMMENDATION
It is recommended that the City Council adopt a resolution to deny the appeal and uphold the Planning Commission’s denial of the following requests related to an existing mini-mart with gasoline sales:
1. A Use Permit to allow the off-sale of beer and wine in an existing mini-mart with gasoline sales; and
2. A Variance to allow a reduction of the required minimum 300-foot separation between an existing mini-mart with the proposed off-sale of beer and wine and a public academic school, for property located at 3440 East Main Street.
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Summary
The appeal was originally scheduled to be considered by the City Council on July 12, 2016; however, at the request of the applicant and with the Council’s concurrence, the matter was continued to August 23, 2016 (Attachment A - Letter Requesting Continuance). The existing mini-mart with gasoline sales was authorized and constructed under the jurisdiction of San Joaquin County and was later annexed into the City in 1980. The applicant, Manpreet Singh, purchased the property in May of 2015 and has operated the business since that time. He has submitted the following two applications for the convenience of his customers: 1) a Use Permit to allow the off-sale of beer and wine in the existing mini-mart with gasoline sales; and 2) a Variance to reduce the required minimum 300-foot separation between his mini-mart with the proposed off-sale of beer and wine and an existing public academic school.
Former Stockton Municipal Code (SMC) Section 16.80.040.A required a minimum separation of 300 feet between off-sale alcohol establishments and public or private academic schools for students in kindergarten through 12th grade. Roosevelt Elementary School (Stockton Unified School District) is located approximately 100 feet away from the subject site and staff received a letter of opposition signed by three employees of the school district, including the school principal (Attachment D - Letter from SUSD and E-Mail from Area Resident). A variance application was filed to request a reduction of the above-noted separation from 300 to 100 feet. There are no special circumstances, unique physical characteristics, or conditions applicable to this site that distinguish it from other similarly-zoned parcels in the vicinity.
In sum, approval of the variance would equate to a special privilege that would be inconsistent with limitations placed on other similarly-zoned parcels in the vicinity and is, therefore, the basis for staff’s recommendation of denial. Consequently, the requested Use Permit to allow the off-sale of beer and wine in the existing mini-mart does not comply with the SMC’s development standards for alcoholic beverage sales. As a result, and since the required findings were not made for either application, staff recommends that Council deny the appeal for both applications.
DISCUSSION
Background
The approximately 0.6-acre site is located at the southwest corner of Main Street and Broadway Avenue in east Stockton. The project site is occupied by an existing 800-square foot mini-mart in the center of the property and four existing gas pumps with eight (8) fuel dispensers under a canopy on the north side of the project site. State Department of Alcoholic Beverage Control (ABC) records indicate there have been three off-sale of beer and wine licenses (Type 20) issued on the project site between 1986 and 2006 (the subject site was annexed into the City in 1980). In March of 2007, the last alcohol license was automatically revoked by ABC, because the former business owner did not renew his alcohol license after he closed the mini-mart business and as a result, alcohol sales ceased. However, applicable provisions of both the previous and current Zoning Code required a Use Permit since well before 1980 for the off-sale of alcoholic beverages. Records in the Planning and Engineering Division indicate that a Use Permit has never been approved for the off-sale of alcoholic beverages on the project site. As a result, the former alcohol sales on the subject site were considered an illegal use. The existing mini-mart did not have alcohol sales when the applicant took over the business in 2015. He submitted the above-noted applications to request the establishment of alcohol sales in the mini-mart.
The site is zoned CG (Commercial, General) and is bounded to the:
• north across Main Street by various retail uses zoned CG;
• northeast across Main Street and Broadway Avenue by an existing public elementary school (Roosevelt Elementary School) zoned RL (Residential, Low Density);
• east across Broadway Avenue by an existing church zoned CG;
• south by single-family residences zoned RL; and
• west by various retail uses zoned CG (Attachment B - Location Map and Aerial Photograph).
At the March 10, 2016 public meeting, the Planning Commission approved the applicant’s request to continue the hearing for the project until April 14. 2016.
Project Description
In accordance with SMC Section 16.240.020, a retail store selling a combination of alcohol, gasoline, and a range of merchandise for the motoring public is defined as a “convenience store.” The applicant has been operating the existing mini-mart with gasoline sales since 2015 and is now requesting a Use Permit to convert the mini-mart into a convenience store by the addition of the off-sale beer and wine. He has indicated to staff that the request has been made to satisfy his 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 SMC Section 16.240.020. According to the applicant, beer and wine would be displayed in an existing walk-in cooler in the southeast corner of the store. The operator would continue to offer other merchandise for sale in the store, including chips, snacks, candies, and non-alcoholic bottled/canned beverages. The hours of operation for the existing mini-mart with gasoline sales are from 6:00 a.m. to 10:00 p.m., 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 application was deemed complete for processing and originally scheduled for action by the Planning Commission before the effective date of the Code Amendment, it was processed in accordance with the previously-applicable provisions of the Development Code. As an alternative, the Planning Commission could have acted upon the Use Permit in accordance with the new alcohol ordinance, only if it determined that it was necessary to do so to ensure public health, safety, welfare, and orderly development. Because the subject Use Permit was acted upon by Planning Commission in accordance with the previously-effective provisions of the Development Code, staff recommends that the City Council also utilize the previously-effective alcohol provisions for the subject Use Permit for consistency.
Variance
The applicant submitted the variance application to request a reduction of the noted minimum separation requirement. SMC Section 16.172.050.A requires four General Findings of Fact that must be made in the affirmative to approve a variance application. The Planning Commission did not make any of the four required findings. Each of the required findings were analyzed by staff and listed below:
1. Special Circumstances: There are no special circumstances, unique physical characteristics, or conditions applicable to this site that distinguish it from other similarly-zoned parcels in the vicinity, because it has the same general physical characteristics and zoning as nearby parcels. The requested Variance application was submitted solely for the applicant to be able to provide alcohol sales to his customers and compete with other retail stores in the area that already have the off-sale of alcohol. Therefore, enforcement of the required 300-foot minimum separation does not deny the applicant privileges enjoyed by other property owners with similarly-zoned parcels in the vicinity of the project site.
2. Exceptional Circumstances - There are no exceptional or extraordinary circumstances or conditions applicable to the site or to the intended use of the site that distinguish it from other properties with the same zoning designation, because the project site has the same zoning as the adjoining parcels to the north, east, and west and the existing mini-mart is not configured in such a way that students at the adjacent school are precluded from being able to access the store. Finally, the Development Code does not contain any provisions that would exclude the proposed off-sale alcohol use from having to comply with the noted minimum separation requirement.
3. Physically Suitable - The subject site is not physically suitable for the proposed Variance, because the site has no distinctive topographical or physical features, such as being landlocked, or having an irregular shape. Because the site lacks a distinctive physical characteristic, it is not physically suitable for the granting of a Variance application.
4. Granting the variance would:
a. Be necessary for the preservation and enjoyment of substantial property rights possessed by other property owners in the same vicinity and zoning district and denied to the property owner for which the variance is sought;
b. 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;
c. Not constitute a granting of special privilege inconsistent with the limitations on other properties classified in the same zoning district;
d. Not authorize a use or activity which is not otherwise expressly authorized by the zoning district regulations governing the subject property;
e. Not be detrimental to the public convenience, health, interest, safety, or general welfare of the City or materially injurious to properties or improvements in the vicinity; and
f. Be in compliance with the provisions of the California Environmental Quality Act (CEQA) and the City’s CEQA Guidelines.
The Planning Commission could not make the findings, because this proposed use does not meet the noted criteria. Granting the variance would authorize a use that would not otherwise be permitted for other CG-zoned parcels within 300 feet of the nearby school and increase the intensity and incompatibility of a use that is not consistent with applicable General Plan policies. Specifically, General Plan Land Use Policy No. LU-1.7 states that:
“The City shall continue to apply the regulations and procedures of the Development Code and shall use the environmental process to prevent or mitigate land use conflicts.”
The subject use is not consistent with this Policy because it does not meet Development Code standards for separation from a school, which is intended to prevent land use conflicts between alcohol-related land uses and schools. Approval of the variance would represent a granting of special privilege that would be inconsistent with limitations placed on other similarly-zoned parcels in the vicinity of the project site. In accordance with records from the Department of Alcoholic Beverage Control (ABC), a former operator sold alcohol to minors in 2001 at this site. Therefore, granting the variance could be detrimental to the safety and general welfare of students, teachers, and staff in the existing school and residents in the surrounding neighborhood, due to the project’s potential for police-related problems associated with the proposed off-sale of beer and wine in the existing mini-mart (e.g. loitering, increased calls for service, etc.).If the Variance request is denied, no environmental analysis is needed for the proposed use under the California Environmental Quality Act (CEQA).
Use Permit
The applicant submitted a Use Permit to request the off-sale of beer and wine in an existing mini-mart with gasoline sales. To allow the establishment of alcoholic beverage sales in the mini-mart, there are seven required general findings in former SMC Section 16.168.050.A that must be made in the affirmative to approve the proposed use. The general findings require compliance with all applicable provision in the SMC; maintaining the integrity and character of the applicable zoning district; compliance with General Plan objective/polices and any applicable Specific Plan or Master Development Plan; the provision of adequate utility services for the proposed use; consideration of public convenience, health, safety; land use compatibility; and compliance with the CEQA Guidelines for the noted Use Permit application.
However, as previously-indicated, the Use Permit cannot be approved unless the requested Variance is also approved. Approval of the above-noted Variance would represent a granting of special privilege that would be inconsistent with limitations placed on other similarly-zoned parcels in the vicinity of the project site as described above. Absent an approved Variance application and the accompanying relief from the noted minimum separation standard, the requested Use Permit does not comply with the SMC’s development standards for alcoholic beverage sales. Therefore, staff recommended that the Planning Commission deny the Use Permit. During the public hearing for the project, the Planning Commission considered both the required Variance and Use Permit Findings and concluded that not all findings could be made in the affirmative.
Census Tract
The project site is located in Census Tract 20.00. Based upon the population in that geographic area, the ABC determined that three (3) off-sale alcoholic beverage establishments are allowed within the Census Tract. There is currently one (1) active off-sale alcohol establishment within this Census Tract, not including the applicant’s requested license. The applicant is proposing to buy an existing off-sale beer and wine license (Type 20) from outside of the census tract and transfer it to the subject site. Approval of the Use Permit and the subsequent issuance of a Type 20 ABC license would not result in an overconcentration of such licenses in the census tract. Therefore, in accordance with ABC’s regulations, a finding of Public Convenience or Necessity was not required to be made for this project by the Planning Commission.
However, the larger area within 4,000 feet of the subject site has twelve (12) existing off-sale alcohol outlets. Nine (9) of the twelve (12) alcohol establishments are located on the east side of Highway 99, which is under the jurisdiction of San Joaquin County (Attachment C - Locations of Active On-Sale and Off-Sale Alcoholic Beverage Licenses). Adding another off-sale alcohol establishment has the potential to increase crimes, loitering, vandalism, panhandling, drunkenness, and vagrancy in this neighborhood and would likely result in an increase in calls for police service, which would deplete police resources in this area of the City.
Problem Use
An off-sale alcoholic beverage establishment constitutes a “Problem Use” and, as such, requires three additional findings, pursuant to former SMC Section 16.168.050.B. In accordance with 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, increase the concentration by allowing an additional problem use in the area. As a result, the Planning Commission did not make the findings 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 another alcoholic beverage sales establishment would not negatively affect the area surrounding the subject site. He 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 between two similar land uses: convenience stores/mini-marts and liquor stores.
2 The proposed use will increase or encourage the deterioration or blight of the area, because the proposal has the potential to create an unsafe neighborhood, due to an increase in alcohol-related crimes, illegal activities, and drunkenness and to increase or encourage deterioration or blight in the area. According to the Police Department’s newly updated crime report statistics, the average number of crimes reported in all of the Citywide Crime Reporting Districts is 85. The project site is located in Crime Reporting District No. 204. The average number of crimes reported in this district is 92, which is approximately 8% above the average of crimes reported Citywide. Because the average is not more than 20% above the City-wide average, the district is not considered a High Crime Reporting District. Although the project site is not located in a High Crime Reporting District, there are already twelve (12) off-sale alcohol outlets within approximately three quarters of a mile of the subject site. Clearly, the area immediately surrounding the proposed use is adequately serve by the existing alcohol sales outlets. Adding another alcoholic beverage sales establishment on the subject site does not provide any benefit for the customers’ convenience, given the number of existing alcohol sales establishments in the area.
3 Although there are no adopted neighborhood improvement programs for this area of the City, the establishment of an additional use of this type in the area will hinder neighborhood conservation, improvement, and redevelopment, either residential or nonresidential, because such an establishment has the potential to increase alcohol-related illegal activities, which would adversely affect the quality of the life for area residents.
As a result, staff recommended denial of the noted applications, because all of required findings for both Variance and Use Permit could not be made in the affirmative.
Public Comments
Stockton Unified School District’s (SUSD) Facilities and Planning Division submitted a letter of opposition to the requested alcohol-related use. The letter, which is signed by two facilities planning staff and the principal of Roosevelt Elementary School, states that alcohol use is one of the initial stages of the progression into illicit drug use. It notes that there are already ample alcohol establishments in the vicinity of the project and adding another off-sale alcohol license has the potential to be detrimental to children living within the area. Staff also received an e-mail from an area resident who is opposed to the variance and off-sale of beer and wine in the mini-mart (Attachment D - Letter from Stockton Unified School District and E-Mail from Area Resident).
Planning Commission Action
At the April 14, 2016 public hearing, the applicant’s representative indicated that the applicant purchased the property with the mini-mart and gasoline station under the impression that there was an active alcohol license on the project site. He also noted that the mini-mart business would be difficult to sustain without the off-sale of alcoholic beverages. The applicant also stated that the mini-mart previously had off-sale alcohol licenses. He indicated that he would not object to the Planning Commission placing conditions of approval on the Use Permit for his proposed convenience store, such as no single sales of beer or malt liquor and a restriction on the size of containers. The applicant submitted a petition with the names and signatures of 144 of his customers and area residents who supported the subject use (Attachment E - Public Petitions to Support the Proposed Project).
Two persons spoke in support of the project during the hearing and one opponent of the project expressed her concerns regarding the proposed use and stated that the project site was not suitable for the sale of alcohol, because the proposed use was too close to the school and had the potential to create an unsafe neighborhood for the students and area residents.
Following public testimony, members of the Planning Commission expressed concerns regarding the elementary school’s proximity to the proposed convenience store and indicated that approval of the request would be detrimental to the safety and general welfare of students, teachers, and staff in the existing school, as well as residents in the surrounding neighborhood. At the conclusion of the hearing, a motion was made and approved (6-0, Hernandez absent) to deny the subject Use Permit and Variance based on the inability to make the required findings.
On April 25, 2016, the applicant filed an appeal of the Planning Commission’s denial of the Use Permit to allow the off-sale of beer and wine in the existing mini-mart with gasoline sales and Variance to reduce the minimum separation requirement between an off-sale alcoholic beverage establishment and an academic school at 3440 East Main Street (Attachment F - Letter of Appeal).
Staff now recommends that the City Council deny the appeal and uphold the decision of the Planning Commission to deny the Use Permit and Variance applications, based upon the inability to make the required findings. The City Council can uphold the Commission’s action and deny the appeal 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 - Letter Requesting Continuance
Attachment B - Location Map and Aerial Photograph
Attachment C - Locations of Active On-Sale and Off-Sale Alcoholic Beverage Licenses
Attachment D - Letter from SUSD and E-Mail from Area Resident
Attachment E - Public Petitions to Support the Proposed Project
Attachment F - Letter of Appeal