REPORT TO THE PLANNING COMMISSION
October 4, 2023
FROM: PHILLIP SIEGRIST, Planning Manager
Planning & Development Department
THROUGH: RALPH KACHADOURIAN, Supervising Planner
Planning & Development Department
BY: ERIK YOUNG, Planner III
Planning & Development Department
SUBJECT
Title
Consideration of an appeal filed regarding the denial of Conditional Use Permit Application (CUP) No. P23-00593, requesting authorization to upgrade from a State of California Alcoholic Beverage Control Type 20 alcohol license (Off-Sale beer and wine) to a Type 21 alcohol license (Off-Sale beer, wine, and distilled spirits) for a ±2,576 square-foot Johnny Quik Food Store currently under construction located at 6940 West Barstow Avenue, on the northeast corner of West Barstow and North Grantland Avenues. (Council District 2)
1. DENY the Appellant’s appeal and UPHOLD the action of the Planning and Development Department Director to deny CUP Application No. P23-00593 requesting authorization to upgrade from a State of California Alcoholic Beverage Control (ABC) Type 20 alcohol license (Off-Sale beer and wine) to a Type 21 alcohol license (Off-Sale beer, wine, and distilled spirits) for an existing Johnny Quik Food Store.
Body
EXECUTIVE SUMMARY
CUP Application No. P23-00593 was filed by Ken Vang of Vang Incorporated Consulting Engineers, on behalf of Beal Developments, LLC., and requests authorization to upgrade from a State of California ABC Type 20 alcohol license (Off-Sale beer and wine) to a Type 21 alcohol license (Off-Sale beer, wine, and distilled spirits) for a ±2,576 square-foot Johnny Quik Food Store.
On June 29, 2023, the Director of Planning and Development denied the CUP application based upon the project’s non-compliance with the required location restrictions of Section 15-2706-F of the FMC and the inability to make the required findings for CUPs under FMC Section 15-5306 (Exhibit L, Denial Letter).
The Director’s decision to deny the request was appealed by George Beal of Beal Developments on July 6, 2023 (Exhibit I). Therefore, the subject appeal of the director’s decision must now be considered by the Planning Commission.
Staff recommends upholding the Director’s denial of the conditional use permit based on substantial evidence detailed in this staff report that; 1) the special permit application will not meet the location restrictions for alcohol sales, nor the exception provisions specified under Section 15-2706-F-6; and 2) specific Findings made by the Director in denial of the conditional use permit contained in Section 15-5306 remain valid.
BACKGROUND
The subject property is currently being developed with a new Johnny Quik Food Store with Chevron retail fuel station. Physical development of the site was authorized under CUP No. P19-04593 which was previously approved by the Planning and Development Director on August 5, 2020. In addition, on November 5, 2020, the Fresno City Council authorized the establishment of a State of California Alcoholic Beverage Control (ABC) Type 20 (Off-Sale Beer & Wine) alcohol license under previously approved CUP No. P19-04594.
It is noted that the applicant has yet to exercise the rights granted by the ABC CUP No. P19-04594 and a Type 20 ABC license is pending and has not been issued for this location. According to the conditions of approval, the rights granted under this special permit must be commenced by November 5, 2023. However, the applicant has requested a one-year extension which has been granted in accordance with FMC Section 15-5012-A-1.
The subject CUP application (P23-00593) requests to modify the previously approved ABC CUP (P19-04593) by upgrading from their previously authorized Type 20 off-sale alcohol license (beer and wine) to a Type 21 off-sale general license to include the sale of distilled spirits. There are no other changes being proposed by the applicant to the current retail operations of the food store/fuel station. The food store will operate from 5:00 a.m. to 12:00 a.m. Sunday through Thursday, and 5:00 a.m. to 1:00 a.m. Friday and Saturday.
The property is zoned CC/UGM/CZ (Commercial - Community/Urban Growth Management/conditions of zoning). Pursuant to FMC Table 15-1202 (Land Use Regulations - Commercial Districts), alcohol sales are permitted with an approved conditional use permit and subject to additional regulations pursuant to FMC Section 15-2706 (Alcohol Sales - The Responsible Neighborhood Market Act) including applicable location restrictions.
Number of Existing and Allowed ABC Licenses
ABC authorizes one off-sale alcohol license per 1,120 people within Census Tract 42.18, which has an approximate population of 7,709. Per ABC, a total of six (6) off-sale alcohol licenses are allowed in Census Tract 42.18. Census Tract 42.18 currently has one (1) off-sale alcohol license (EZ Trip located at 6639 North Parkway Drive which operates with a Type 21 license). Should the proposed request be authorized, Census Tract 42.18 would have two (2) off-sale alcohol licenses; both of which being Type 21 licenses.
Citywide Development Code
The proposed conditional use permit shall comply with the requirements of FMC Section 15-2706 (Responsible Neighborhood Act). Pursuant to FMC Section 15-2706-D-1, (Applicability - New or Expanded Use), any new or existing establishment that requests to modify their alcohol or business license (which includes upgrades in license types) must obtain a Conditional Use Permit (CUP) in compliance with the standards of the section, including applicable location restrictions, to ensure that establishments operate in a manner that is mutually beneficial to surrounding uses and to also provide mechanisms to prevent and correct any associated problems.
Location Restrictions
According to FMC Section 15-2706-F (Location Restrictions for New Establishments), new and/or existing establishments that must obtain a CUP pursuant to the Responsible Neighborhood Market Act (RNMA) off-sale alcohol establishments are prohibited if they are within one of the following areas:
1. Near Sensitive Uses. The establishment shall not be located within 1,000 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.
The establishment is located approximately 400 feet south of an existing preschool located at 5590 North Grantland Avenue (Brighten Academy Preschool).
2. Near Other Alcoholic Beverage Establishments. The establishment shall not be located within 1,000 feet of an existing establishment, nor may it lead to a grouping of more than four (4) establishments within a 1,000-foot radius. Notwithstanding this requirement, an establishment shall not be located within 500 feet of an existing establishment when an establishment is located in a Census Tract that is not oversaturated with off-sale licenses.
The establishment is not located within 1,000 feet of another existing establishment.
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.
The subject property is located within Police Crime Zone 1542, which is not a documented high crime area. Furthermore, according to the State ABC office, the subject site is not located within a high crime area.
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 project site is located in Census Tract 42.18, which allows up to six (6) off-sale licenses. Census Tract 42.18 currently has one (1) existing and active off-sale license (EZ Trip located at 6639 N. Parkway Drive). The issuance of the requested license would not result in an over concentration of off-sale licenses within the census tract.
5. Citywide Ratio. No establishment shall be granted a Conditional Use Permit under this Section if the number of sites selling alcohol for off-site consumption exceeds one license per 2,500 residents. This ratio requirement shall not apply to: (1) existing establishments that must obtain a CUP pursuant to this ordinance due to proposed expansion or improvement of an existing use that is currently operating pursuant to a CUP issued prior to the effective date of this ordinance; (2) new establishments that utilize the Cancel and Transfer provisions stated in Section S., below: or (3) an existing establishment that is in good standing which has a change in the ABC license holder, specifically partner franchisees.
According to the United States Census Bureau, the City of Fresno has an estimated population of 545,567 residents (2022). Per the established citywide ratio requirements noted above (one per 2,500 residents), there shall be no more than 218 off-sale licenses within the City of Fresno.
According to the State of California Alcoholic Beverage Control there are a total of 502 active off-sale alcohol licenses (Type 20 & 21) currently within the City of Fresno. Therefore, the current citywide ratio of existing off-sale licenses is one license per 1,084 residents, which exceeds the established ratio.
The establishment/proposed project is not in compliance with subsection 1 and 5 of the aforementioned location restrictions pursuant to FMC Section 15-2706-F, as it is located within 1,000 feet of sensitive use (Brighten Academy Preschool) and the number of sites selling alcohol for off-site consumption exceeds one license per 2,500 residents. Therefore, the requested CUP is prohibited per FMC Section 15-2706-F-1.
Exceptions from Location Restrictions
According to FMC Section 15-2706-F-6, a new establishment may be excepted from the location restrictions if the Review Authority determines all of the following:
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.
In the memorandum dated May 6, 2023, the Fresno Police Department indicated it was not in opposition to the project and provided Police Department conditions to be included in the conditions of approval for Conditional Use Permit Application No. P23-00593, should it be approved. Furthermore, in approving the prior Conditional Use Permit No. P19-04594 on November 5, 2020, the City Council found that the proposed use (off-sale of alcohol) is not located within an area in which the Police Chief has determined 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 specific to this request.
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.
The Johnny Quik Food Store, which is currently being constructed, will provide pre-packaged and prepared food, snacks, non-alcoholic beverages, tobacco products, personal care items, grocery items, and home goods. In addition, the Johnny Quik will include an accessory quick serve restaurant. The addition of alcoholic beverages (including distilled spirits) will contribute to 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.
The nearest establishment to purchase distilled spirits is over a mile away. Approving this CUP for distilled spirits will give the nearby residents a closer location to purchase distilled spirits.
d. The primary use of the establishment, based on information provided by the applicant, has been determined by the Review Authority to meet the definition of a General Market including a supermarket, neighborhood grocery store or a Healthy Food Grocer.
The approved Johnny Quik Food Store will not carry such items found in a supermarket, neighborhood grocery store, or a healthy food grocer. Items such as fresh fruit, produce, and meats, etc. will not be sold at this establishment. The Director has established a formal policy to allow for an exception to be made to allow alcoholic sale at Specialty Grocery Stores if the store includes eight (8) key elements. This policy is attached as Exhibit M (Policy and Procedure No C-005). The Johnny Quik Food Store does not contain these eight (8) elements and, thus, the establishment does not meet the definition of a General Market including a supermarket, neighborhood grocery store, Healthy Food Grocer, or a specialty grocery store. As such, the Director could not make this exception based on this policy.
The Director was unable to make all of the aforementioned exceptions to the location restrictions pursuant to FMC Section 15-2706-F-6, because the Johnny Quik Food Store does not meet the definition of a General Market. Therefore, the requested alcohol license upgrade was denied by the Director on June 29, 2023.
Fresno Police Department Review
The Northwest Policing District reviewed the subject application and does not oppose the project provided the applicant agrees to the conditions listed in its memorandum dated May 6, 2023 (Exhibit J) and submits a complete security plan. Conditions include compliance with the FMC sections limiting noise and unlawful nuisance, compliance with State of California Alcoholic Beverage Control rules and employee education, video camera surveillance, limitations of alcohol types and servings, limitations of on-site alcohol consumption and loitering, and completion of a security plan.
Central Unified School District Review
The school district did not provide comments during the commenting period.
Other Agencies
All comments received from the applicable agencies have been incorporated into the draft conditions of approval for Conditional Use Permit Application P23-00593. See Exhibit J for all written agency comments received.
Public Notice and Input
Council District 2 Project Committee Review
On April 10, 2023, the Council District 2 Project Review Committee reviewed this project and voted to recommend approval with no additional comments and/or recommendations. Motion passed by a vote of 3 to 0.
Notice of Intent
Pursuant to FMC Section 15-5305, the Planning and Development Department mailed a Notice of Intent to Take Action (Exhibit E) - a neighborhood notice, to surrounding property owners within 1,000 feet of the subject site on April 14, 2023, in accordance with FMC Section 15-5007. Thirteen (13) emails were received in opposition to the proposed alcohol license upgrade.
Collectively, the concerns pertained to the surrounding single-family homes and nearby schools. The residents believe an approved license upgrade would be detrimental to the children and property values. Additional concerns pertained to an overconcentration of off-sale alcohol licenses within a mile radius of the subject site. Furthermore, it was stated that members of the public already have the ability to obtain distilled spirits at Shaw/Hayes, Parkway Drive/Herndon, and Herndon/Riverside Drive. In addition, some residents opposed the license upgrade due to a possible increase in loitering, trash, homelessness, vehicular accidents, crime, and other public nuisances.
Notice of Action
On June 29, 2023, the Director of Planning and Development denied the CUP application and a Notice of Action (Exhibit E) was provided to the applicant as well as individuals who specifically requested to receive notification.
Notice of Planning Commission Hearing
On July 6, 2023, the Director’s decision to deny the application was appealed by the applicant (Exhibit I, Appeal Letter). Therefore, the appeal has been referred to the Planning Commission for consideration. In accordance with Section 15-5007 of the FMC, the Planning and Development Department mailed notices of this Planning Commission hearing to surrounding property owners within 1,000 feet of the subject property and to the appellant on September 25, 2023 (Exhibit E).
LAND USE PLANS AND POLICIES
Fresno General Plan
The Fresno General Plan designates the subject site for 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 small offices. Many of the city’s current commercial districts fall into this designation. Specific uses allowed include medium-scale retail, office, civic and entertainment uses, supermarkets, drug stores and supporting uses.
The Fresno General Plan provides goals, objectives, and policies to guide development. The following are applicable goals from the Fresno General Plan:
• Goal 9: Promote a city of healthy communities and improve quality of life in established neighborhoods.
• Goal 16: Protect and improve public health and safety.
Alcohol Sales
High exposure to the easy availability of alcohol sales affects public health, safety, and quality of life in a neighborhood. Alcohol sales outlets that are near other outlets, or are in close proximity to sensitive uses, increase the perceived lack of safety in a neighborhood. Moreover, concentrations of such outlets can contribute to a variety of health and safety problems including higher rates of alcohol-related hospitalizations, drunken driving accidents, and pedestrian injuries.
As noted within the Public Utilities and Services section of the Fresno General Plan, the location and prevalence of off-sale alcohol sales can have a negative effect on neighborhood health. In public meetings held during the development of the General Plan, the following concerns were discussed:
• Market saturation. Some neighborhoods feel they have an overabundance of establishments with off-sale licenses to sell alcohol.
• Fear of crime. Community members often see a strong relationship between establishments with off-sale licenses to sell liquor and rates of nuisance and crime.
• Danger to schools. Residents are concerned when alcohol sales are allowed too close to schools because of the impact on teenage drinking.
It has been suggested that alcohol sales establishments possess certain characteristics that have the potential to cause deleterious effects and nuisances on surrounding neighborhoods and businesses, especially when such establishments are concentrated near one another. For this purpose, Section 15-2706 of the FMC contains restrictions on the location for new establishments proposing to sell alcohol.
These restrictions are based upon proximity to schools, public parks, playgrounds, and recreational areas, as well as other youth facilities such as day care facilities. In addition, restrictions apply based upon proximity to alcohol or drug abuse recovery or treatment facilities, proximity to other establishments which sell alcoholic beverages; and, within areas of high crime. The City of Fresno relies on information from the Police Department and the Alcoholic Beverage Control (ABC) in the consideration of permit applications respective to areas of high crime or an overconcentration of ABC licenses.
West Area Community Plan
Upon reviewing the policies contained in the West Area Community Plan, Staff has determined that there are no applicable policies restrictive to alcohol sales compared to those already provided in the Fresno General Plan and the Fresno Municipal Code.
FRESNO MUNICIPAL CODE FINDINGS
The required findings for a CUP 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 averse 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; and,
f. The proposed use is consistent with the Fresno County Airport Land Use Compatibility Plan (as may be amended) adopted by the Fresno County Airport Land Use Commission pursuant to California Public Utilities Code Sections 21670-21679.5.
Based upon analysis of the application, Staff concludes that the required findings made by the Director to deny the special permit under FMC Section 15-5306 (A, B, C, D, E & F) are appropriate. These findings are attached as Exhibit K.
If the Planning Commission decides to grant approval of the request to obtain a Type 21 ABC license, the Commission 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 Planning Commission shall also find that there is substantial evidence in the administrative record to determine all of the following elements in accordance with FMC Section 15-2706-F-6, Exceptions apply:
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.
d. The primary use of the establishment, based on information provided by the applicant, has been determined by the Review Authority to meet the definition of a General Market including a supermarket, neighborhood grocery store or a Healthy Food Grocer.
ENVIRONMENTAL FINDINGS
Pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15270(a), CEQA does not apply to projects which a public agency rejects or disapproves. Therefore, no environmental findings are necessary to adopt a staff recommendation for denial of Conditional Use Permit Application No. P23-00593, to establish a Type 21 (Off-Sale beer, wine, and distilled spirits) alcohol sales license.
However, should the Planning Commission: (1) find the project meets all of the exceptions to the location restrictions in accordance with FMC Section 15-2706-F-6; (2) make the required findings in accordance with FMC Section 15-5306; and (3) grants approval of the request to obtain a Type 21 ABC license, then adoption of a Section 15301/Class 1 (Existing Facilities) Categorical Exemption, pursuant to the California Environmental Quality Act (CEQA) Guidelines, is considered appropriate. The attached Categorical Exemption was prepared for Environmental Assessment No. P23-00593 and dated October 4, 2021 (Exhibit N) may be adopted by the City Council if the required findings are made as set forth above.
CONCLUSION
The appropriateness of the proposed project has been examined with respect to its consistency with goals and policies of the Fresno General Plan, the West Area Community Plan, compliance with specific provisions of the Development Code; its compatibility with surrounding existing or proposed uses; and its avoidance or mitigation of potentially significant adverse environmental impacts. These factors have been evaluated as described above. Upon consideration of this evaluation, it can be concluded that CUP Application No. P23-00593, a request to upgrade and establish an alcohol license, is not appropriate for the subject property.
If the Planning Commission decides to grant approval of the proposed project, the Commission must find that there is substantial evidence in the administrative record that the project can be excepted from the location restrictions pursuant to FMC Section 15-2706-F-6 and make the required findings of FMC Section 15-5306. Should the Planning Commission make the required findings, approval of the CUP application shall be subject to the applicant’s compliance with the Draft Conditions of Approval (Exhibit J) dated October 4, 2023.
Action by the Planning Commission is final unless appealed to City Council in accordance with Section 15-5017 of the FMC.
ATTACHMENTS:
Exhibit A - Vicinity Map
Exhibit B - Aerial Photograph
Exhibit C - Zoning Map
Exhibit D - Project Information Tables
Exhibit E - Noticing Map, NOITTA, NOA, NOPH
Exhibit F - Master App. & Owner Authorization
Exhibit G - Operational Statement
Exhibit H - Exhibits (Site Plan, Elevations, Floor Plan)
Exhibit I - Appeal Letter
Exhibit J - Draft Conditions of Approval [10/4/2023]
Exhibit K - Fresno Municipal Code Findings
Exhibit L - Denial Letter
Exhibit M - Policy & Procedure C-005
Exhibit N - Environmental Assessment P23-00593