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REQUEST FOR A USE PERMIT TO ESTABLISH A PROPOSED MARKET WITH OFF-SALE GENERAL ALCOHOLIC BEVERAGES AT 2208 E. MAIN STREET (P18-0302)
recommended action
RECOMMENDATION
Staff recommends that the Planning Commission adopt a resolution approving a Use Permit to establish a proposed meat and grocery market with off-sale of general alcoholic beverages in an existing commercial building at 2208 E Main Street, in accordance with the Findings for Decision detailed herein.
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Summary
On August 23, 2018, the Planning Commission granted, after opening the public hearing, a request from the project applicant’s attorney to continue the item to September 27, 2018. The applicants, Abdo Naqi and Musa Hassan are seeking to relocate an existing liquor store (Corona Liquors) with the off-sale of general alcoholic beverages (Type 21, off-sale general alcohol) at 2280 East Main Street to an existing meat and grocery market (same block west) at 2208 East Main Street (Attachment A - Location Map and Aerial Photography).
In accordance with Stockton Municipal Code (SMC) Section 16.20.020, Table 2-2, Allowable Land Uses and Permit Requirements, a Commission Use Permit is required for the off-sale general alcoholic beverage aspect of the use. SMC Sections 16.80.040. D. 2. a. and d.ii. provide three location restrictions for this application: (1) proximity to sensitive land uses; (2) not being located in a High Crime Reporting District; and (3) proximity to other alcoholic beverage sales establishments.
The subject use does not comply with theLocation Restriction related to the site’s proximity to other alcoholic beverage sales establishments. An existing market (Don Jose’s Market) with the off-sale of beer and wine (Type 20 license) at 2196 East Main Street is approximately 50 feet to the west of the proposed site. The applicant has requested that the Commission exercise its discretion under SMC Section 16.80.040.D.2.d.ii and waive the noted Location Restriction (alcoholic beverage sales) to promote and support local business growth.
Staff recommends that the Location Restriction be waived because the relocation of their business approximately 250 feet away in the same block will accommodate its proposed growth from 1,800 square feet to approximately 2,800 square feet in size and continue to be a neighborhood serving commercial use adjacent to the residential neighborhood. Past operations of the subject business have not resulted in a public nuisance through excessive calls for service and approval of the Use Permit will include conditions sufficient to mitigate potential negative impacts on the subject site and the surrounding neighborhood.
DISCUSSION
Background
The subject site is designated under the General Plan as Commercial and is zoned Commercial General (CG). The applicant is requesting to allow the relocation of an existing liquor store with the off-sale of general alcoholic beverages to an existing market at the above-noted location. The subject site is bounded to the:
• North across Main Street by residential uses zoned CG;
• east by a vacant commercial building zoned CG;
• south by residential uses zone RM, Residential, Medium-Density; and
• west across Court Street by a market zoned CG.
Present Situation
The existing 1,800-square foot liquor store is located on the southwest corner of East Main Street and South McDonell Avenue. In 1978, a Use Permit (UP17-78) was issued to allow a liquor store with off-sale of general alcoholic beverages at that location. The applicants have been operating the business under that permit for fifteen years. However, because their lease is expiring, they are requesting a Use Permit to allow the relocation of their existing business to an existing meat and grocery market on the southeast corner of Main Street and Court Street in the same block (2208 East Main Street). The proposed relocation site has an existing approximate 2,800 square foot building. The applicant and the market operator will join in partnership to operate the market and the new addition of off-sale of general alcoholic beverages at the same location.
The applicant proposes to devote no more than 20 percent of the building’s gross floor area to the sale, display, and/or storage of alcohol, thereby avoiding classification as a “liquor store,” pursuant to SMC Section 16.80.040.C., “Alcoholic Beverage Sales Activity.” According to the applicant, general alcohol will be displayed in a locked cabinet on the north side of the store. Beer and wine will be displayed in walk-in coolers on the west side of the store (Attachment B - Site Plan and Floor Plan). The market would continue to offer other merchandise for sale in the store. The business hours for the market are from 8:00 a.m. to 11:00 p.m., Monday through Thursday and 8:00 a.m. to 12:00 a.m. on Friday, Saturday, and Sunday.
Location Restriction
SMC Section 16.80.040.D. 2. a. and d.ii, contains the following Location Restrictions for new alcoholic beverage sales establishments:
Proximity to Schools and Parks
SMC Section 16.80.040.D.2.a requires a minimum separation of 500 feet between a new off-sale alcoholic beverage establishment and public or private academic schools for students in kindergarten through 12th grade, nursery schools, preschools, daycare facilities, public parks, playgrounds, recreational areas, or youth facilities. The Google Map shows that Fair Oaks School was located at 2145 E. Lafayette Street (current address 2147 E Lafayette Street) and the property is located within a 500-foot radius of the project site. Staff conducted a site visit on September 10, 2018, and found that the noted school no longer exists; instead, there is a single-family home on the site. The residence is not used/operated as a large family child-care home or day-care center, as confirmed with the State Department of Social Service and the Fire Department. Further, there are no other restricted facilities (public parks, playgrounds, recreational areas and youth facilities) within 500 feet of the project site. The subject use complies with the noted minimum required separation.
High Crime Reporting District
SMC Section 16.80.040.D.2.d.ii.(A) provides that a business with the off-sale of alcoholic beverages may 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 project site is located in CRD No. 0192. According to the Police Department’s crime reporting statistics, the average number of crimes reported in all of the citywide CRDs is 192. The number of crimes reported in the subject CRD for 2015, 2016 and 2017 is 138, which is below the citywide average by 28.13 percent. The proposed use complies with the CRD location restriction.
According to the Calls for Service (CFS) statistics from the Police Department, the liquor store location at 2280 East Main Street had a total of 6 CFS between May 31, 2017, and April 30, 2018. The statistics indicated that only one of the six CFS resulted in a crime report related to a disturbance. The relatively low crime rate associated with the subject use will be expected to result in greater sales and potential economic growth through the continued sale of merchandise and/or alcohol to the surrounding neighborhoods albeit within a larger building.
Census Tract
The subject site is located in Census Tract 19.00. Based on the population in that geographic area, ABC has determined that four (4) off-sale alcoholic beverage licenses are allowed within the census tract. There are currently nine (9) active off-sale licenses in the census tract, including the applicant’s Type 21 license. The area is, therefore, overconcentrated with respect to the off-sale alcoholic beverage establishments. The applicant is proposing to transfer his ABC license from 2280 E. Main Street to 2208 E. Main Street. ABC staff confirmed in writing that transferring the applicant’s Type 21 License from the current location to the new location will not result in a net increase in the number of active off-sale alcohol licenses nor increase the existing overconcentration in the census tract. Therefore, a Finding of Public Convenience or Necessity (PCN) will not be required for the subject Use Permit.
Proximity to Other Alcoholic Beverage Sales Establishments
SMC Section 16.80.040.D (2)(d)(ii)(B) provides that an off-sale alcohol establishment shall not be located in an area 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. In accordance with ABC’s records, there is an existing market with the off-sale alcohol establishment located approximately 50 feet to the west of the premises. There are no other off-sale alcoholic beverage establishments within a 1,000-foot radius of the subject site (Attachment C - Census Tract, 19.00 Liquor Licenses). Therefore, the subject use does not comply with the noted 500-foot minimum separation requirement for off-sale alcohol establishments.
SMC Section 16.80.040.D.2.a provides the Review Authority with the discretion to waive the proximity Location Restriction to promote and support local business growth throughout the City. The following General Plan Land Use Policies are relevant to the requested waiver of the Location Restriction:
• LU-4.8 Neighborhood Serving Commercial - The City shall encourage small neighborhood-serving commercial uses adjacent to and within residential areas where such uses are compatible with the surrounding area and mitigate any significant impacts (i.e., traffic, noise lighting); and
• LU-4.10 Commercial Cluster Encouragement/Protection - The City shall encourage the clustering of commercial uses and discourage the splitting of commercial clusters or centers by arterial roadways.
The proposed use is consistent with these policies because the market will be located on the southeast corner of Main Street and Court Street that is served, but not split, by the arterial roadway. Further, the Use Permit for a market with the off-sale of general alcohol sales, if approved, will authorize a small neighborhood-services commercial use to offer a one-stop shop and provide a public convenience to serve area residents with Conditions of Approval mitigating potential negative impacts on the subject site and the surrounding neighborhood.
If the current requested Use Permit for 2208 East Main Street were to be approved, the existing Use Permit (UP17-78) approved in 1978 and issued to 2280 East Main Street would remain valid since it runs with the land. SMC Section 16.80.040.D.2.c.ii.(C) addresses this situation with a requirement for the prior Use Permit to be voluntarily surrendered, if applicable, so that the ‘transfer’ may occur without resulting in a net increase in off-sale alcoholic beverage licenses in an existing over-concentrated census tract. The applicant (not the owner/holder of the Use Permit) and staff independently contacted the property owner of 2208 East Main Street regarding the code requirement for voluntarily surrendering the above-noted Use Permit. The owner advised that there was no intent to voluntarily surrender the existing Use Permit. Therefore, for the reasons stated above, staff determined that the requirement for voluntary surrender of the prior Use Permit cannot be applied on this project.
In the future, if a request is made to ABC for the transfer of an existing off-sale of alcohol license (Type 20 or Type 21) from the outside census tract to the site at 2280 E. Main Street, ABC will require that the City of Stockton make a determination of public convenience and necessity (PCN) before such a transfer could occur. This would require an application to and a determination by the City for a PCN. The review authority for this determination is the City Manager with staff input pursuant to a previous delegation of authority by City Council, and the decision is based on making required findings as specified in SMC Section 16.168.050.C.4. Since a PCN determination is required, there is no guarantee the prior Use Permit (UP17-78) may be used for the purposes of alcoholic beverage sales.
Findings
The SMC contains specific Findings, all of which must be made in the affirmative to support the approval of a Use Permit. If one or more of the Findings cannot be made, the Use Permit cannot be approved.
General Findings
There are seven required General Findings in SMC Section 16.168.050.A. They require compliance with all applicable provisions in the SMC; maintaining the integrity and character of the applicable zoning district; consistency with applicable General Plan objectives and policies; physical suitability of the site for the proposed use; not endangering or jeopardizing the public health, safety, peace, or general welfare of the public; compatibility with surrounding uses; and consistency with the California Environmental Quality Act.
Problem Uses
Section 16.168.050.B contains three specific Findings for Problem Uses. The proposed use is not likely to interfere with the comfortable enjoyment of life or property in the area; not increase or encourage the deterioration or blight of the area; and not be contrary to any program of neighborhood conservation, improvement, or redevelopment, either residential or nonresidential.
Alcoholic Beverage Findings
Section 16.168.050.C contains four specific Findings for Alcoholic Beverages. The Findings address the project’s potential impacts that would result in nuisance activities on and in proximity to the subject use. 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, if required.
Staff believes that the Alcoholic Beverage Findings can be affirmatively made for this project. The subject use has not, to date (at 2280 East Main Street), resulted in nuisance activities and, under recommended Conditions of Approval, would be required to install surveillance cameras on-site and have a zero-tolerance policy on violence and service to minors. Further, the owner and employees will be required to complete an approved training course in Licensee Education on Alcohol and Drugs (LEAD) or another ABC-approved program within 60 days of hiring new employees or within six (6) months for existing employees.
The subject use must comply with all applicable provisions of City, State, and Federal regulations. Approval of the subject Use Permit will not require a Finding of PCN because transferring a Type 21 License from the current location to the new location in the same census tract will not result in a net increase in the number of active off-sale alcohol licenses.
Public Comments
The Planning and Engineering Services Division of the Community Development Department, the Police Department, and other City departments were provided an opportunity to review the application. No objections to the staff recommendation were received.
The public hearng was continued from August 23, 2018 to September 27, 2018 at the request of the applicant’s attorney. The original public notice was provided via newspaper legal ad and mail on August 8, 2018. As of the writing of the staff report, staff has not received any public comments for the proposed use.
Environmental Clearance
The proposed project is a Categorically Exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines §15301 (Class 1, Existing Facilities) since it consists of the operation of a commercial use within an existing commercial building. The project is also not subject to any of the exceptions to the use of a Categorical Exemption enumerated at CEQA Guidelines §15300.2.
Attachment A - Location Map and Aerial Photography
Attachment B - Site Plan and Floor Plan
Attachment C - Census Tract 19.00, Liquor Licenses
This staff report was prepared by Senior Planner Jenny Liaw, (209) 937-8316; jenny.liaw@stocktonca.gov.