REPORT TO THE CITY COUNCIL
October 19, 2017
FROM: JENNIFER K. CLARK, Director
Development and Resource Management Department
THROUGH: MIKE SANCHEZ, Assistant Director
Development Services Division
BONIQUE EMERSON, Planning Manager
Development Services Division
BY: PHILLIP SIEGRIST, Planner
Development Services Division
SUBJECT
Title
HEARING to consider Conditional Use Permit Application No. C-17-079, located on the northwest corner of East Jensen Avenue and State Highway 99. (Council District 3)
1. DENY Conditional Use Permit Application No. C-17-079 requesting to establish 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 a proposed convenience store.
Body
RECOMMENDATION
Staff recommends that the City Council take the following action:
1. DENY Conditional Use Permit Application No. C-17-079 requesting to establish 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 a future proposed Johnny Quik convenience store.
EXECUTIVE SUMMARY
Ken Vang of Precision Engineering, Inc., on behalf of George Beal of Beal Developments, LLC., has filed Conditional Use Permit Application No. C-17-079 pertaining to approximately ±0.87 acres of property located on the northwest corner of East Jensen Avenue and State Highway 99. The applicant requests to establish 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 a future proposed Johnny Quik convenience store. Staff is recommending denial of the Type 20 alcohol license.
Staff recommends denial of Conditional Use Permit Application No. C-17-079 based on substantial evidence detailed in this staff report that Findings A, B, C, and D contained in Section 15-5306 of the Fresno Municipal Code cannot be made due to documented high crime, proximity to existing establishments, and over-concentration of alcohol licenses in the area, and, therefore, the Conditional Use Permit cannot be approved.
BACKGROUND
Conditional Use Permit Application No. C-17-079 proposes to establish 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 a future proposed Johnny Quik convenience store. The subject property is zoned IH (Heavy Industrial). Per FMC Table 15-1302, alcohol sales are permitted in the IH (Heavy Industrial) zone district subject to an approved Conditional Use Permit and additional regulations pursuant to FMC Section 15-2706.
Police Department Review
Although the sale of alcohol is allowed with a conditional use permit on the subject site, the Fresno Police Department does not support the issuance of a State of California Alcoholic Beverage Control (ABC) license at this location based on several factors. The census tract in which the subject site is located is currently at or above the designated saturation level for ABC licenses. In addition, the subject property is located within Police Crime Zone 3057 which is a documented high crime, industrial area. Furthermore, the proposed establishment would be located within 500 feet of an existing establishment.
However, the Fresno Police Department 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. Furthermore, the Fresno Police Department indicated that opposition to the project would be withdrawn should the conditions be placed upon the issuance of the alcohol license and met.
Therefore, the Fresno Police Department’s comments shall be incorporated into the Conditions of Approval dated October 19, 2017 (Exhibit I) in their entirety if the City Council votes to approve the sale of alcohol at this location.
Washington Unified School District (WUSD) Review
The Washington Unified School District did not respond to the request for comment on this application.
Other Agencies
All comments received from the applicable agencies have been incorporated into the conditions of approval for Conditional Use Permit Application No. C-17-079. See Exhibit I 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
The subject site is located in Census Tract 11. According to ABC, Census Tract 11 currently has seven active off-sale alcohol licenses. ABC authorizes one off-sale alcohol license per 1,075 people per census tract. Census Tract 11 has a population of 3,174. Per ABC, only two off-sale alcohol licenses are allowed in Census Tract 11. Therefore, there are five more off-sale alcohol licenses in Census Tract 11 than authorized for that census tract.
Citywide Development Code
Location Restrictions
According to FMC Section 15-2706-E (Location Restrictions for New Establishments), new off-sale alcohol establishments that are under 10,000 square feet are prohibited 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 establishment is in compliance with only one of the locational restrictions as it would not be located within 500 feet of any of the identified sensitive uses. However, the proposed establishment is not in compliance with the other three locational restrictions.
An existing Type 20 alcohol license is located across the street at the Flyers convenience store/truck stop. The distance measured from property line to property line is approximately ±230 feet. The distance measured from approximate location of the future proposed Johnny Quik and the existing Flyers convenience store/truck stop is approximately 495 feet (building to building). Therefore, staff has determined that the proposed establishment is located near another alcoholic beverage establishment (within 500) and does not meet location restriction number 2.
According to comments received from both ABC and the Fresno Police Department, the proposed establishment is located within a high crime area. The Fresno Police Department provided records for calls for service (CFS) for nearby and adjacent properties (see Exhibit K: Calls for Service). The CFS records primarily included the following reasons: homeless issues, petty thefts, brandishing, panhandling, and street racing. Based upon comments from both ABC and the Fresno Police Department and evidence contained in the CFS records, staff has determined that the proposed establishment is located within a high crime area and therefore does not meet location restriction number 3.
As explained in the ABC Regulations section above, the proposed establishment is located within Census Tract 11 which currently has five more off-sale licenses than permitted. Therefore, the proposed establishment is located within a high concentration area and does not meet location restriction number 4.
Therefore, because the proposed establishment is not incompliance with three of the four location restrictions pursuant to FMC Section 15-2706-E, the proposed new alcohol CUP is prohibited per the FMC.
Exception from Location Restrictions
According to FMC Section 15-2706-E-5, a new establishment may be excepted from the location restrictions if the Review Authority determines any one 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.
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.
The Director was unable to make any of these findings and therefore, is denying the request to establish a Type 20 alcohol license.
In response to staff’s recommendation for denial and the Director not being able to make any of the exception findings in accordance with FMC Section 15-2706-E, the applicant requests the City Council reconsider and make the exception from the location restrictions on the basis that the sale of alcoholic beverages is incidental and appurtenant to a larger retail use and provides for a more complete and convenient shopping experience pursuant to FMC Section 15-2706-E-5-a. In addition to this request, the applicant submitted supplemental information (see attached Exhibit L: Applicant’s Supplemental Information) for the Council to consider in determining whether the proposed use could be excepted from the location restrictions.
Based upon a sales analysis performed by Kalibrate, the proposed Johnny Quik is projected to generate approximately $645,000 in total sales (in-store, deli, and gasoline) per month. Of the total projected sales, alcoholic beverage sales is expected to generate approximately $9,300 per month. Therefore, approximately 1.4% of the total sales per month would be generated from the sale of alcoholic beverages.
LAND USE PLANS AND POLICIES
Fresno General Plan
The Fresno General Plan designates the subject property for the Heavy Industrial planned land use and provides objectives to guide in the development of this project. The Heavy Industrial planned land use designation accommodates the broadest range of industrial uses including manufacturing, assembly, wholesaling, distribution, and storage activities that are essential to the development of a balanced economic base. Small-scale commercial services and ancillary office uses are also permitted.
As noted within the Public Utilities and Services section of the Fresno General Plan, the location and prevalence of liquor stores 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 nuisances and crime.
• Danger to schools. Residents are concerned when alcohol sales are allowed too close to schools because of the impact on teenage drinking.
The future proposed Johnny Quik 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. However, the proposed alcohol related use is considered to be substantially adverse to the public health, safety, or general welfare of the community, and detrimental to surrounding properties or improvements. Therefore, it is staff’s opinion that the proposed project is not consistent with respective general plan objectives and policies and may conflict with applicable land use plans, policies or regulation of the City of Fresno.
Edison Community Plan
Upon reviewing the policies contained in the Edison 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 Notice and Input
Council District Plan Implementation Committee
There is no District 3 Plan Implementation Committee to recommend approval of the project, thus no comments or recommendations were received.
Fresno City Planning Commission Action
Conditional Use Permit Application No. C-17-079 was considered by the Fresno City Planning Commission at its meeting on August 16, 2017. After a complete hearing, the Commission was unable to find substantial evidence in the administrative record to determine any of the exceptions in accordance with FMC Section 15-2706-E-5 apply and was unable to make the required findings pursuant to FMC Section 15-5306. Therefore, the Commission voted unanimously to deny Conditional Use Permit Application No. C-17-079.
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 October 6, 2017 (see attached Exhibit E: Public Hearing Notice Mailing List Vicinity Map).
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 and the Planning Commission conclude that the required findings of FMC Section 15-5306 (a & c) cannot be made. These findings are attached as Exhibit J.
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 in accordance with FMC Section 15-2706-E-5 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.
ENVIRONMENTAL FINDINGS
No environmental findings are necessary to adopt staff recommendation for denial for the project. However, should the City Council make the required findings in accordance with FMC Section 15-5306 and grant approval of the request to obtain a Type 20 ABC license then a Section 15332/Class 32 Categorical Exemption (see attached Exhibit O: Categorical Exemption) will be made in accordance with the State of California Environmental Quality Act (CEQA) Guidelines.
Section 15332 of the CEQA Guidelines addresses projects of an in-fill nature. Qualifying projects must be consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulation. Projects must be located within city limits on a site of no more than five acres. Projects must pose no value for endangered, rare, or threatened species. Additionally, projects may only be found exempt under this section if they will result in no significant effects relating to traffic, noise, or air quality, and if the site may be adequately served by all required utilities and public services.
The proposed project is a use application only, without associated development, and complies with the Class 32 exemption. The conditional use application for a Type 20 alcohol license is consistent with the employment - heavy industrial planned land use identified for the subject property in the General Plan and with the IH (Heavy Industrial) zone district. The project site is 0.87 acres in size and is located within the city limits. The proposed use will result in no significant effects on habitat for endangered or threatened species, traffic, noise, or air quality. The site is adequately served by all required utilities and public services, and the granting of the use permit will result in no additional demands on services.
LOCAL PREFERENCE
Local preference was not considered because this 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 applications 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.
Attachment: Exhibit A - Vicinity Map
Exhibit B - Aerial Photograph
Exhibit C - Planned Land Use Map
Exhibit D - Zoning Map
Exhibit E - Public Hearing Notice Mailing List Vicinity Map
Exhibit F - Project Information Tables
Exhibit G - Exhibits (Conceptual Site Plan, Elevations, Floor Plans)
Exhibit H - Operational Statement
Exhibit I - Conditions of Approval dated October 19, 2017; including memoranda from responsible or commenting agencies
Exhibit J - Fresno Municipal Code Findings
Exhibit K - Calls for Service
Exhibit L - Applicant’s Supplemental Information
Exhibit M - Census Tract 11 Off-sale Alcohol License Vicinity Map
Exhibit N - Planning Commission Resolution No. 13484
Exhibit O - Categorical Exemption
Exhibit P - City Council PowerPoint Presentation