REPORT TO THE CITY COUNCIL
September 28, 2017
FROM: JENNIFER CLARK, Director
Development and Resource Management Department
THROUGH: MIKE SANCHEZ, Assistant Director
Development Services Division
BONIQUE EMERSON, Planning Manager
Development Services Division
BY: MCKENCIE CONTRERAS, Supervising Planner
Development Services Division
SUBJECT
Title
HEARING to consider Conditional Use Permit Application No. C-17-013 and related Environmental Assessment No. C-17-013, for property located on the southwest corner of North Figarden Drive and West Bullard Avenue. This is an appeal of the July 19, 2017 Planning Commission decision. (Council District 2)
1. ADOPT the Negative Declaration prepared for Environmental Assessment No. C-17-013 dated June 12, 2017 with clarifying changes made on September 1, 2017.
2. APPROVE Conditional Use Permit Application No. C-17-013 requesting to develop a commercial center consisting of a 3,764 square-foot ampm convenience store, an ARCO fuel facility consisting of eight multi-product fuel dispensers under an overhead canopy, a 4,000 square-foot retail building, and a 3,462 square-foot quick serve restaurant with a drive-through service window, subject to compliance with the Conditions of Approval dated July 19, 2017.
3. DENY Conditional Use Permit Application No. C-17-013 requesting to establish a Type 20 alcohol license (Package Store - sale of beer and wine for consumption off the premises where sold) for the ampm convenience store.
Body
RECOMMENDATIONS
Staff recommends that the City Council take the following actions:
1. ADOPT the Negative Declaration prepared for Environmental Assessment No. C-17-013 dated June 12, 2017 with clarifying changes made on September 1, 2017.
2. APPROVE Conditional Use Permit Application No. C-17-013 requesting to develop a commercial center consisting of a 3,764 square-foot ampm convenience store, an ARCO fuel facility consisting of eight multi-product fuel dispensers under an overhead canopy, a 4,000 square-foot retail building, and a 3,462 square-foot quick serve restaurant with a drive-through service window, subject to compliance with the Conditions of Approval dated July 19, 2017.
3. DENY Conditional Use Permit Application No. C-17-013 requesting to establish a Type 20 alcohol license (Package Store - sale of beer and wine for consumption off the premises where sold) for the ampm convenience store.
EXECUTIVE SUMMARY
Conditional Use Permit Application No. C-17-013 was filed by Julio Tinajero of Milestone Associates, on behalf of Surina Mann of Figarden Petroleum, and pertains to ±2.41 acres of property located on the southwest corner of North Figarden Drive and West Bullard Avenue. The applicant proposes development of a commercial center consisting of a 3,764 square-foot convenience store and requests the establishment of a State of California Alcoholic Beverage Control Type 20 alcohol license (Package Store - sale of beer and wine for consumption off the premises where sold) for the ampm convenience store, an ARCO fuel facility consisting of eight multi-product fuel dispensers under an overhead canopy, a 4,000 square-foot retail building, and a 3,462 square-foot quick serve restaurant with a drive-through service window. Staff is recommending approval of all of the above except the Type 20 license.
The City Council is considering this project because the environmental assessment prepared for Conditional Use Permit Application No. C-17-013 is being appealed by an adjacent property owner. The adjacent property owner has expressed several concerns related to traffic, air quality, noise, light and glare, crime, and 24 hour operation.
BACKGROUND
Conditional Use Permit Application No. C-17-013 proposes development of a commercial center consisting of a 3,764 square-foot convenience store and requests the establishment of a State of California Alcoholic Beverage Control Type 20 alcohol license (Package Store - sale of beer and wine for consumption off the premises where sold) for the ampm convenience store, an ARCO fuel facility consisting of eight multi-product fuel dispensers under an overhead canopy, a 4,000 square-foot retail building, and a 3,462 square-foot quick serve restaurant with a drive-through service window. Per Table 15-1202 of the Fresno Municipal Code (FMC), a General Market is permitted by right in the CC (Commercial - Community) zone district. Alcohol sales and a drive-through restaurant may be allowed subject to an approved Conditional Use Permit.
Section 15-2706 of the FMC, regulates a variety of types of alcohol sales and sales locations. Specifically, 15-2706-E states an “establishment shall not be located within 500 feet of an existing establishment.” A Shell station and mini-mart with an active Type 20 is located approximately 302 feet from the proposed ampm mini-mart. Furthermore, the code states an “establishment shall not be located in an area of high concentration,” The project is located in an area of high concentration as determined by the Department of Alcoholic Beverage Control. Therefore, the Director is recommending denial of the request to establish a Type 20 alcohol license at this location.
Citywide Development Code
Article 27 (Standards for Specific Uses and Activities), Section 15-2706 (Alcohol Sales), Sub-Section E (Location Restrictions for New Establishments) prohibits new off-sale alcohol establishments that are under 10,000 square feet if they are within one of the following areas:
1. Near Sensitive Uses. The establishment shall not be located within 500 feet of the following:
a. A public park, playground, recreational area, or youth facility, including a nursery school, preschool, or day care facility;
b. A public or private State-licensed or accredited school; or
c. An alcohol or other drug abuse recovery or treatment facility.
2. Near Other Alcoholic Beverage Establishments. The establishment shall not be located within 500 feet of an existing establishment, nor may it lead to a grouping of more than four establishments within a 1,000 foot radius.
3. Within High Crime Areas. The establishment shall not be located in an area of high crime, as defined by the California Business and Professions Code 23958.4(a)(1) et seq., and as determined by the Department of Alcoholic Beverage Control (ABC).
4. Within High Concentration Areas. The establishment shall not be located in an area of high concentration, as defined by the California Business and Professions Code 23958.4(a)(3) et seq., and as determined by the Department of Alcoholic Beverage Control.
The proposed project is located within both a high concentration area (according to ABC), and within 500 feet of an existing establishment therefore, the proposed new alcohol CUP is prohibited. According to Section 15-2706 of the FMC, a new establishment may be excepted from location restrictions if the Review Authority determines any one of the following:
1. The proposed use is not located within an area in which the Chief of Police has determined, based upon quantifiable information, that the proposed use a) would be detrimental to the public health, safety, or welfare of persons located in the area, or b) would increase the severity of existing law enforcement or public nuisance problems in the area.
2. The proposed off-premises sale of alcoholic beverages is incidental and appurtenant to a larger retail use and provides for a more complete and convenient shopping experience.
3. The proposed outlet for the off-premises sale of alcoholic beverages would act as a public convenience or necessity to an underserved portion of the community and/or enhance the vitality of an existing commercial area without presenting a significant adverse impact on public health or safety.
The Director was unable to make any of these findings and therefore, is denying the request to establish a Type 20 alcohol license.
The project is in compliance with the two other locational requirements/restrictions. The proposed project would not be within 500 feet of any of the identified sensitive uses and is not within a high crime area.
Police Department Review
The Fresno Police Department does not oppose the project, or the issuance of a State of California Alcoholic Beverage Control (ABC) license, but has provided conditions addressing compliance with the FMC limiting noise and unlawful nuisance, compliance with ABC rules and employee education, video camera surveillance, limitations on alcohol types and servings, and limitations on on-site alcohol consumption and loitering.
The Fresno Police Department’s comments shall be incorporated into the Conditions of Approval dated July 19, 2017 (Exhibit J) in their entirety if the City Council votes to approve the sale of alcohol at this location.
Fresno Unified School District (FUSD) Review
FUSD provided comments indicating the district did not support this application. Their comment letter expressed concerns regarding potentially dangerous interactions between students and the proposed operation but indicated their response was subject to the Alcoholic Beverage Control Act and the Fresno Police Department’s review and support of the proposed project. The location is approximately 2,175 feet from Figarden Elementary School.
Other Agencies
All comments received from the applicable agencies have been incorporated into the conditions of approval for Conditional Use Permit Application No. C-17-013. See Exhibit J for all written agency comments received.
Alcoholic Beverage Control (ABC) Regulations
In addition to obtaining a Conditional Use Permit from the City of Fresno, the applicant is required to obtain a license from the California Department of Alcoholic Beverage Control awaiting the decision on the subject Conditional Use Permit Application.
Number of Existing and Allowed ABC Licenses
According to the ABC, census tract 42.12 has 14 currently active off-sale alcohol licenses, four more than has been authorized for that census tract; therefore the census tract is over concentrated.
Letters of Opposition
On March 17, 2017, a Notice of Intent to Take Action was mailed to residents and businesses within 1,000 feet of the location (see Exhibit D for Noticing Map). Seven letters of opposition were received and one individual came to express her concerns in person. Since the Planning Commission meeting one letter of appeal was received. All letters of opposition are attached as Exhibit H.
Many of the letters mentioned concerns related to increased traffic and noise. Impacts to water quality and air pollution were also mentioned in a letter questioning the decision to adopt a Negative Declaration for the project. Opposition also had concerns with crime rates in the area, over saturation of the mini-mart/convenience store market, and the number of establishments in the vicinity selling alcohol.
Staff received 132 post cards from neighbors stating opposition to the project. Of those responses, 108 individuals were in opposition because they do not believe another gas station is needed to service the needs of surrounding residents, 105 were concerned with the 24 hour nature of the proposed project, and 87 were concerned about the additional traffic generated by the proposed project.
• Concern #1: Some of the neighbors were concerned with the increase of traffic and associated impacts to air quality.
Response: A Traffic Impact Study was prepared for the project. This study was reviewed by the Public Works Department, Traffic Division, and it was determined that the additional amount of trips generated by the proposed project can be absorbed by the existing and planned infrastructure through the payment of impact fees for improvements. The Level of Service (LOS) for studied intersections will remain at a LOS D or better with existing conditions plus the project. Cumulative impacts of expected development by 2035 plus the project are still considered less than significant, even though the LOS drops to an E, due to the fact that the delay is less than a 5 second increase. This 5 second delay threshold is the City’s defacto level of significance and has been used in numerous other environmental assessments when determining if a project will result in significant cumulative impacts. The payment of traffic impact fees will be used by the City to maintain circulation infrastructure at acceptable levels into the future.
The San Joaquin Valley Air Pollution Control District has commented on the project and will require compliance with multiple District Rules and Regulations to protect the health of residents both near the project site and within the air basin at large. In their memo, (included in Exhibit L) the Air District sates, “Project specific emissions of criteria pollutants are not expected to exceed District Significance thresholds of 10 tons/year NOX, 10 tons/year TOG, and 15 tons/year PM10. Therefore, the District concludes that project specific criteria pollutant emissions would have no significant adverse impact on air quality.”
• Concern #2: Some of the neighbors were concerned with the increase of noise generated by the project.
Response: Although the project will create additional activity in the area, the project will be required to comply with all noise policies from the Fresno General Plan and the noise ordinance from the FMC. These policies are designed to protect nearby residents. The construction of the project will result in a short-term increase in construction related noise levels. However, this increase in noise will cease once the project is completed. Thus, construction activity would be exempt from City of Fresno noise regulations, as long as such activity is conducted pursuant to an applicable construction permit and occurs between 7:00 a.m. and 10:00 p.m., excluding Sundays. The subject property is planned for Community Commercial uses, which allows commercial developments located adjacent to existing residential land uses. The FMC requires buffer setbacks to reduce impacts. The project will be complying with the required setbacks.
• Concern #3: One letter expressed concern with environmental impacts such as water quality and light and glare.
Response: All environmental impacts were evaluated in an Initial Study prepared for the project. The review determined the proposed project to be a subsequent project that is within the scope of the Master Environmental Impact Report (MEIR) SCH No. 2012111015 prepared for the Fresno General Plan and a Negative Declaration is recommended for adoption. The Initial Study found the proposed project will not generate additional significant effects to environmental resources. Water quality is maintained through the City’s sewer and storm drain system. Light and glare are reduced to levels of less than significant by appropriately placing light sources in accordance with the FMC and including shields and non-reflective materials. Mitigation Measures (MM) AES-1 and MM AES-3 of the MEIR require lighting systems for street and parking areas to be shielded to direct light to surfaces and orient light away from adjacent properties.
• Concern #4: Some of the neighbors were concerned about crime rates in the area, over saturation of the mini-mart/convenience store market, and the number of establishments in the vicinity selling alcohol.
Response: In this case, the Director has recommended an ABC license not be issued for this location because of its close proximity to another convenience store with a Type 20 license, and it is in an area of high concentration. The Police Department provided comments to reduce the number for calls of service to this location, with or without alcohol sales.
• Concern #5: Some of the neighbors were concerned with the 24 hour nature of the proposed project.
Response: The FMC does not regulate the hours of operation for commercial uses in this zone district. The project will be required to comply with all noise policies from the Fresno General Plan and the noise ordinance from the FMC which sets acceptable noise levels for uses dependent upon the land use and the time of day. The Police Department has also placed conditions of approval on the project to ensure public safety and to minimize any impact to the surrounding area. The conditions will help to maintain an environment that is less likely to generate criminal activity, public complaints, and police calls for service.
The applicant has objected to the denial of their request to establish a Type 20 license (specifically condition of approval #2). They have provided a letter in support of granting an exception from the location requirements of 15-2706 of the FMC (Exhibit I).
Land Use Plans and Policies
The Fresno General Plan designates the subject property for the Community Commercial planned land use and provides objectives to guide in the development of this project. The Community Commercial planned land use designation is intended for commercial development that primarily serves local needs such as convenience shopping and offices. Specific uses allowed include medium-scale retail, office, civic and entertainment uses, supermarkets, drug stores, and supporting uses.
Conditional Use Permit Application No. C-17-013 meets the policies and objectives of the Fresno General Plan. The following are excerpts of such objectives.
Goal 1: Increase opportunity, economic development, business, and job creation. Use urban form, land use, and Development Code policies to streamline permit approval, promote local educational excellence and workforce relevance, significantly increase business development and expansion, retain and attract talented people, create jobs and sustained economic growth, strategically locate employment lands and facilities, and avoid over-saturation of a single type of housing, retail, or employment.
Goal 8: Develop Complete Neighborhoods and districts with an efficient and diverse mix of residential densities, building types, and affordability which are designed to be healthy, attractive, and centered by schools, parks, and public and commercial services to provide a sense of place and that provide as many services as possible within walking distance.
Policy LU-1-A: Promote Development within the Existing City Limits as of December 31, 2012. Promote new development, infill, and rehabilitation of existing building stock in the Downtown Planning Area, along BRT corridors, in established neighborhoods generally south of Herndon Avenue, and on other infill sites and vacant land within the City.
Objective LU-6: Retain and enhance existing commercial areas to strengthen Fresno’s economic base and site new office, retail, and lodging use districts to serve neighborhoods and regional visitors.
The proposed project promotes increased opportunity, economic development, business, and job creation to serve the neighborhood and regional visitors and it preserves and protects resources within the City by expanding development into infill sites. Therefore, it is staff’s opinion that the proposed project is consistent with respective general and community plan objectives and policies and will not conflict with any applicable land use plan, policy or regulation of the City of Fresno.
Bullard Community Plan
Upon reviewing the policies contained in the Bullard Community Plan, staff has determined that there are no policies that are applicable or are more restrictive than those contained in the FMC or the Fresno General Plan.
Public Input
District 2 Plan Implementation Committee
The applicant spoke to the District 2 Plan Implementation Committee at their regularly scheduled meeting on April 10, 2017. The committee voted to recommend approval of the proposed project at that time.
Notice of Planning Commission Hearing
This item was originally scheduled to be heard by the Planning Commission on July 5, 2017. Due to a noticing error, the item was continued to the July 19, 2017 hearing.
The Development and Resource Management Department mailed notices of this Planning Commission hearing to surrounding property owners within 1,000 feet of the subject property (Exhibit D). Staff also sent notices, via U.S. mail, to individuals who requested notification.
Fresno City Planning Commission Action
On July 19, 2017, the Planning Commission considered the item as presented by staff, followed by a presentation done by the applicant. During the hearing, several members of the public spoke in opposition and one spoke in support. After a complete hearing, the Planning Commission voted to approve the project with the condition that alcohol sales be permitted and the sale of alcohol end at midnight. The Planning Commission also made the finding found in Section 15-2706-E-5-a of the FMC.
Since the Planning Commission hearing, an appeal to the environmental assessment prepared for the project was received within the 15 day appeal period. Therefore, the Planning Commission decision has been set aside and the item is scheduled to be considered by the City Council.
Notice of City Council Hearing
In accordance with Section 15-5007 of the FMC, a notice of public hearing was mailed to surrounding property owners within 1,000 feet of the subject site on September 15, 2017 (see attached Exhibit D).
Fresno Municipal Code Findings
The required findings under Section 15-5306 of the FMC are as follows:
a. The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of this Code and all other chapters of the Municipal Code; and,
b. The proposed use is consistent with the General Plan and any other applicable plan and design guideline the City has adopted; and,
c. The proposed use will not be substantially adverse to the public health, safety, or general welfare of the community, nor be detrimental to surrounding properties or improvements; and,
d. The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and reasonably foreseeable future land uses in the vicinity; and,
e. The site is physically suitable for the type, density, and intensity of use being proposed, including access, emergency access, utilities, and services required.
Based upon analysis of the application, staff concludes that the required findings of Section 15-5306, of the FMC can be made if the request for alcohol sales is denied. These findings are attached as Exhibit K.
If the City Council decides to grant approval of the request to obtain a Type 20 ABC license, the Council must find that there is substantial evidence in the administrative record to make all the findings mentioned above and amend them to include the sale of alcohol. The City Council shall also find that there is substantial evidence in the administrative record to determine any of the following exceptions can be made:
a. The proposed use is not located within an area in which the Chief of Police has determined, based upon quantifiable information, that the proposed use a) would be detrimental to the public health, safety, or welfare of persons located in the area, or b) would increase the severity of existing law enforcement or public nuisance problems in the area.
b. The proposed off-premises sale of alcoholic beverages is incidental and appurtenant to a larger retail use and provides for a more complete and convenient shopping experience.
c. The proposed outlet for the off-premises sale of alcoholic beverages would act as a public convenience or necessity to an underserved portion of the community and/or enhance the vitality of an existing commercial area without presenting a significant adverse impact on public health or safety.
ENVIRONMENTAL FINDINGS
Environmental Assessment No. C-17-013 considered potential environmental impacts associated with the conditional use permit application request. The City of Fresno conducted an initial study of the above-described project and it has been determined not to have a significant effect on the environment and the initial study was prepared in accordance with Sections 15070 to 15075 of the CEQA Guidelines. The project is also within the scope of the Master Environmental Impact Report (MEIR) SCH No. 2012111015 prepared for the Fresno General Plan.
The subject property is proposed to be developed at intensity and scale that is permitted by the Community Commercial planned land use designation for the subject site. Thus, the development of the subject property in accordance with Conditional Use Permit Application No. C-17-013 will not facilitate an additional intensification of uses beyond those which already exist or would be allowed by the above-noted planned land use designation. Moreover, it is not expected that the future development will adversely impact existing city service systems or the traffic circulation system that serves the subject property. These infrastructure findings have been verified by the Public Works and Public Utilities Departments. It has been further determined that all applicable mitigation measures of the MEIR have been applied to the project necessary to assure that the project will not cause significant adverse cumulative impacts, growth inducing impacts, and irreversible significant effects beyond those identified by the MEIR.
Based on the initial study prepared, the following findings are made: (1) The proposed project was identified as a Subsequent Project in the MEIR because its, location, land use designation and permissible densities and intensities are set forth in the Fresno General Plan; (2) The proposed project is within the scope of the MEIR because it will not generate additional significant effects on the environment not previously examined and analyzed by the MEIR for the reasons set forth in the Initial Study; and (3) there are no new or additional mitigation measures or alternatives required. Therefore, the Development and Resource Management Department proposes to adopt a Negative Declaration for this project (Exhibit L).
The Negative Declaration has had some minor changes since the Planning Commission acted but recirculation of the environmental assessment is not required pursuant to Section 15073.5(c)(4) of the CEQA Guidelines because the changes are minor clarifications. These changes are outlined in Exhibit L.
LOCAL PREFERENCE
Local preference was not considered because this ordinance does not include a bid or award of a construction or service contract.
FISCAL IMPACT
Affirmative action by the Council will result in timely deliverance of the review and processing of the application as is reasonably expected by the applicant. Prudent financial management is demonstrated by the expeditious completion of this land use application inasmuch as the applicant has paid to the city a fee for the processing of this application and that fee is, in turn, funding the respective operations of the Development and Resource Management Department.
Attachments:
Exhibit A - Vicinity Map
Exhibit B - Aerial Photograph
Exhibit C - Planned Land Use Map & Zoning Map
Exhibit D - Noticing Vicinity Map
Exhibit E - Project Information Table
Exhibit F - Operational Statement
Exhibit G - Exhibits (Site Plan, Elevations, Floor Plans)
Exhibit H - Letters of Opposition
Exhibit I - Letter from Applicant
Exhibit J - Conditions of Approval dated July 19, 2017
Exhibit K - Fresno Municipal Code Findings
Exhibit L - Environmental Assessment No. C-17-013
Exhibit M - Planning Commission Resolution No. 13474
Exhibit N - PowerPoint Presentation
Exhibit O - 9-19-17 Letter to Fresno Mayor and CC Members
Exhibit P - 9-20-17 CAO response to 9-19-17 letter
Exhibit Q - 9-21-17 Letter to CAO