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APPEAL OF THE PLANNING COMMISSION’S DENIAL OF THE REQUEST FOR A USE PERMIT TO ALLOW THE OFF-SALE OF BEER AND WINE AT 836 E MINER AVENUE (P16-0263)
This item was continued from the Council meeting of December 6, 2016.
recommended action
RECOMMENDATION
It is recommended that the City Council adopt a resolution to deny the appeal and uphold the Planning Commission’s denial of a Use Permit to allow the off-sale of beer and wine at 836 E Miner Avenue.
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Summary
Applicant, Sandhia Devi Sharma, filed an appeal following the Planning Commission’s August 25, 2016 denial of a Use Permit to add the off-sale of beer and wine (Type 20) to an existing mini-market located at 836 E Miner Avenue, between Aurora Street and Grant Street (Attachment A - Location Map and Aerial Photograph). The project failed to meet one of the required location restrictions under the Stockton Municipal Code (SMC.) SMC Section 16.80.040.D(2)(d)(i) and (ii) states that a business with off-sale of beer and wine shall not be located in a high crime reporting district. Therefore, staff recommended denial of the requested Use Permit and following a public hearing, the Planning Commission denied the use permit. Staff now recommends that Council deny the appeal and uphold the Planning Commission’s decision.
DISCUSSION
Background
The site is zoned IL (Light Industrial), and is bounded to the:
• north and west by used car sales and warehouses zoned Downtown Commercial (CD)
• east by the ACE train station zoned Light Industrial (IL)
• south by residential zoned Light Industrial (IL)
The General Plan designates the project site for Commercial land use. This land use designation along with the Light Industrial (IL) zoning allows for off-sale beer and wine with approval of a Use Permit.
The applicant is proposing to add a three-door, eight-foot-wide cold case that will hold approximately five shelves of alcoholic beverages. The existing mini-market is 1,300 square feet with the alcohol sales and storage space proposed to account for approximately 10 percent or 130 square feet of the total floor area. The mini-market operates from 6:00 a.m. to 7:30 p.m. seven days a week. The applicant indicated that it has outside security lighting and video surveillance cameras in and outside the building for added security. The California Department of Alcoholic Beverage Control (ABC) indicated that the applicant filed a request to transfer their Type 20 alcohol license, within the same census tract but into a different crime reporting district, from their previous location at 48 N California. At the previous mini-market location, the operator was cited for three ABC violations, including two violations for alcohol sales to minors in 2009 and 2011 (Attachment B - ABC Violation Information).
Location Restrictions
SMC Section 16.80.040 outlines criteria for alcoholic beverage sales establishments. Additionally, specific findings are required for problem land uses as defined under SMC Section 16.168.050 for alcoholic beverage sales.
Proximity to Schools and Parks
SMC Section 16.80.040.D(2) requires a minimum separation of 500 feet between an establishment with the off-sale of alcoholic beverages and public or private academic schools for students in kindergarten through 12th grade, public parks, playgrounds, recreational areas, or youth facilities. According to the San Joaquin County Office of Education, there are no County One Schools located within 500 feet of the project site. There are no parks, playgrounds or recreational areas within 500 feet of the project site. Therefore, the proposed use complies with the noted minimum separation requirement.
High Crime Reporting District
In the review of commission use permit applications for new alcoholic beverage sales establishments and upgrades or transfers of existing ABC licenses, which are considered problem uses as defined in the SMC, the following shall be considered and may be grounds for denial based upon potential adverse effects to the public interest, health, safety or convenience.
Alcoholic beverage sales establishments 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 (SMC Section 16.80.040.D(2)(d)(ii) (A) ).The applicant’s location is within crime reporting district 103, with a higher than average crime rate of 269, which is 216% above the City average of 85 over a three-year period (2013-2015). A recent study by the University California Riverside found that of 91 largest US cities (including Stockton) that retail alcohol outlet density and violent crime are significantly related, and result in additional demands for police services. With an area of the City already experiencing extremely high crime rates, continuing to add off-sale outlets has the potential to increase illegal activities, including violent crime associated with alcohol sales. Therefore, the proposed use does not comply with this location restriction due to a higher than average crime rate.
Proximity to Other Alcoholic Beverage Sales Establishments
SMC Sections 16.80.040.D(2)(d)(i) and (ii) require that new off-sales establishments 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.
The project site does not have another off-sale location within 500 feet or within a 1,000-foot radius of the proposed location, so the addition of the proposed use would not exceed either the 500-foot separation rule or the limit of four off-sales within the 1000-foot radius. (Attachment C- Locations of Active Alcoholic Beverage Licenses). Therefore, the proposed use complies with this location restriction.
Census Tract
SMC section 16.80.040.D.2.c indicates that transferring an existing off-sale alcoholic beverage license from one location to another location within the same census tract where there already exists an over-concentration of alcoholic beverage licenses shall not result in a net increase of the number of such licenses, and the transferred license shall comply with the location restrictions of SMC 16.80.040.D.2.a (separation from schools and parks) and surrender a previously-approved Council use permit, if applicable, at the original location from the property owner.
The applicant applied with ABC to transfer the Type 20 license from its previous location within the same census tract. In accordance with ABC’s regulation, a Public Convenience or Necessity (PCN) finding for a Type 20 license would not be required, because the license is moving within the same census tract (1.00) where the license count does not change. The previously-licensed location did not have a Commission -approved use permit, but was a “deemed approved” use, therefore there is no use permit to surrender.
The project site is located in Census Tract 1.00. 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 are currently nine (9) active off-sale licenses within the census tract, including the applicant’s requested license transfer. The tract therefore would not have a net gain in active licenses and not increase the existing over-concentration.
Because the site is located in an over-concentrated census tract but it does not increase the overconcentration or net number of licenses, and there is no use permit to surrender at the prior location, the proposal complies with this location restriction.
Comparable Project
Only one other off-sale application has been brought before Planning Commission for the Downtown area under the newly adopted Alcohol Ordinance, approved by the City Council on January 26, 2016 (effective on March 26, 2016). Some comparison has been made between the previously-approved project and this project; however, they are substantially different from one another. The main difference between the two is the ABC license type. The previously approved project was for a Type 23 micro-brewery. The proposed project is for a Type 20 off-sale. Under ABC definitions, a Type 23 is for a “Small Beer Manufacturer” with minimal off-sale (estimated at 10-15% of total sales) while the Type 20 is 100% off-sale of beer and wine. Unlike the proposed Type 20 license, the previously approved micro-brewery with a Type 23 license is not seen as a retail license and not used by ABC to calculate overconcentration of off-sale within a census tract.
The final difference between these two projects relates to the projects’ potential to be an economic catalyst for the Downtown area to justify the use of waivers for location restrictions. Under SMC Section 16.168.050, the code allows for waivers of location restrictions on the basis of economic benefit for the Downtown. For the micro-brewery, staff was required to give additional justification for the potential overall economic benefits cited from City documents (2012 Urban Land Institute (ULI) assessment and the City’s Economic Development Strategic Plan) along with findings to justify the use of waivers for the micro-brewery project. Additionally, micro-breweries have been used in other communities to activate downtown districts, acting as an entertainment destination and providing a vibrant storefront that potentially increases foot traffic and activity level to the surrounding downtown area. With regard to this off-sale Use Permit request, staff did not find the same pattern of facts and supporting documentation to link the proposed use to an overall economic benefit for the Downtown area.
Findings
The Development Code lists a number of findings that must be made to support the approval of a use permit. All of the required findings must be made to recommend approval of the requested use permit. If one or more findings cannot be made, then the use permit must not be recommended for approval.
There are seven required general findings in SMC Section 16.168.050. The general findings require compliance with all applicable provisions in the SMC; maintaining the integrity and character of the applicable zoning district; consistency with General Plan; physical suitability of the site for the proposed use; not endangering or jeopardizing the public health, safety, peace or general welfare; compatibility with surrounding uses; and consistency with the California Environmental Quality Act.
With respect to the general findings, staff recommends that the council find that the proposal is not consistent with one of the locational restrictions (high crime reporting district) and does not therefore comply with the applicable provisions of the Development Code, and for the same reason does not strengthen the integrity of the neighborhood, would jeopardize the public peace and welfare, and would be incompatible with surrounding land uses.
Additionally, special findings are required for alcoholic beverage sale establishments and Problem Uses. “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 following is a discussion of the Problem Use findings:
1. The proposed use is likely to interfere with the comfortable enjoyment of life or property in the area. The applicant has failed to provide any evidence that relocating the alcoholic beverage sales establishment would not negatively impact the area. According to the Police Department’s newly updated crime report statistics (2013 through 2015), 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. 103. The average number of crimes reported in this district is 269, which exceeds the average by 216%. The Police Department considers those districts with an average of 20% or more above the average to be High Crime Reporting Districts. Therefore, the project site is located in a High Crime Reporting District. Relocating this Problem Use in the area has the potential to increase vagrancy and illegal activities and is 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 nine (9) active off-sale licenses in the subject site’s census tract. The area surrounding the proposed use is adequately served by the existing alcohol sales outlets. Continuing the overconcentration of alcoholic beverage sales establishments has the potential to worsen safety problems in the neighborhood due to increased crimes, illegal activities, and drunkenness, as well as by increasing or encouraging deterioration or blight in the area.
3. The establishment of the proposed off-sale alcohol use in the area will not be contrary to any program of neighborhood conservation, improvement, or redevelopment, either residential or nonresidential, in the subject neighborhood, because no such programs exist in the area. However, the proposed alcohol establishment will 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.
Because the site is located in a very high crime rate district with a call rate of 216% above the City average and based on the findings noted above, staff recommends the City Council adopt a resolution to deny the appeal and uphold the Planning Commission’s denial of a Use Permit to allow the off-sale of beer and wine at 836 E Miner Avenue.
Planning Commission Discussion / Action
At the August 25, 2016 public hearing, the applicant’s representative, Les Lobo, indicated that the applicant has been a long time business operator in the downtown area and was recently forced to relocate due to the remodel of his former place of business. He stated that although the applicant had some ABC violations in the past, he paid the fines and he has been a good business owner overall. He also noted that the mini-mart business would be difficult to sustain financially without the off-sale of beer and wine.
Three opponents of the project spoke at the hearing and expressed their concerns regarding the proposed use and stated that the downtown doesn’t need additional loitering and problems with crime that have been associated with the applicant’s business. The Commissioners were provided with written opposition to granting of the Use Permit from Chris Flaherty, President of Trinity Development and Construction, Cindi Fargo, Chief Executive Officer of Downtown Stockton Alliance, and David Garcia, Chief Operating Officer of Ten Space (Attachment D- Letters in Opposition).
Following public testimony, members of the Planning Commission expressed concerns regarding the three ABC violations that the applicant had incurred at their previous business location (48 N California Street). Additionally, there was concern about a problem use in a crime reporting district that has a very high crime rate (216% above the City average). Commissioners also discussed that continuing off-sale in these high crime areas is detrimental to the safety and general welfare of residents in the surrounding neighborhood. At the conclusion of the hearing, a motion was made and approved (7-0) to deny the subject Use based on staff’s recommendation.
On September 1, 2016, the applicant filed an appeal of the Planning Commission’s decision to deny a Use Permit to allow the off-sale of beer and wine in the existing mini-mart at 836 East Miner Avenue (Attachment E - Appeal Letter & Letters/Petition in Support).
It is recommended that the City Council adopt a resolution to deny the appeal and uphold the Planning Commission’s decision.
Environmental Clearance
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.
VOTES
The City Council may 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.
Attachment A - Location Map and Aerial Photograph
Attachment B - ABC Violation Information
Attachment C - Locations of Active Alcoholic Beverage Licenses
Attachment D - Letters in Opposition
Attachment E - Appeal Letter &Letters /Petition in Support