REPORT TO THE CITY COUNCIL
FROM: JENNIFER CLARK, Planning Director
Development Services Division
THROUGH: PHILLIP SIEGRIST, Planning Manager
Development Services Division
BY: STEVEN MARTINEZ, Planner
Development Services Division
SUBJECT
Title
HEARING to consider of an appeal regarding the denial of Conditional Use Permit Application No. P22-03906, requesting authorization to establish a State of California Alcoholic Beverage Control (ABC) Type 21 (Off-Sale Beer, Wine, & Distilled Spirits) alcohol license for Circle “D” Food & Liquor store located at 2520 East Olive Avenue on the southeast corner of North Fresno Street and East Olive Avenue. (Council District 7)
1. DENY the Appellant’s appeal and UPHOLD the action of the Planning and Development Department Director to deny CUP Application No. P22-03906 requesting authorization to establish a State of California Alcoholic Beverage Control Type 21 (Off-Sale Beer, Wine, & Distilled Spirits) alcohol license for a Circle “D” Food & Liquor store.
Body
RECOMMENDATION
Staff recommends that the Council of the City of Fresno take the following action.
1. DENY the Appellant’s appeal and UPHOLD the action of the Planning and Development Department Director to deny CUP Application No. P22-03906 requesting authorization to establish a State of California Alcoholic Beverage Control Type 21 (Off-Sale Beer, Wine, & Distilled Spirits) alcohol license for a Circle “D” Food & Liquor store.
EXECUTIVE SUMMARY
Conditional Use Permit Application No. P23-03906 was filed by Felipe Ceballos, on behalf of Baldev Khela of Circle D Food & Liquor store, and pertains to an existing to ± 2,939 square-foot gas station and convenience store located on a ±0.60-acre developed site located on the southeast corner of North Fresno Street and East Olive Avenue.
The establishment previously operated with a Type 21 alcohol license at this location. However, due to a fire in 2018, the use ceased operations and considered abandoned pursuant to Fresno Municipal Code Section 15-404(F)(3). Conditional Use Permit Application No. P23-03906 requests to reestablish a State of California ABC Type 21 (Off-Sale Beer, Wine, & Distilled Spirits) alcohol license for the ± 2,939 square-foot Circle D Food & Liquor store.
On October 16, 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 which prohibit a new off-sale establishment that is near sensitive uses, near other alcoholic beverage establishments, within a high crime area, within a high concentration area, when the number of sites selling alcohol for off-site consumption exceeds one (1) license per 2,500 residents, and the inability to make the required findings for conditional use permits under FMC Section 15-5306 (Exhibit F, Fresno Municipal Code Findings). The denial letter is attached as Exhibit E.
On October 31, 2023, the Director’s decision to deny the request was appealed by the project applicant. (Exhibit G-1 - Appeal To Planning Commission). On April 3, 2024, the Planning Commission denied the appeal and upheld the action of the Planning and Development Department Director to deny Conditional Use Permit Application No. P22-03906. On April 12, 2024, the Planning Commission’s decision to deny the request was appealed by Councilmember Nelson Esparza (Exhibit G-2 - Appeal To City Council). Therefore, the subject appeal shall be considered by the Council of the City of Fresno.
Staff recommends upholding the Director’s denial of the conditional use permit based on substantial evidence detailed in this staff report that; 1) the conditional use permit application will not meet the location restrictions for alcohol sales, nor the exceptions to the locations restrictions 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
Conditional Use Permit Application No. P23-03906 pertains to Circle D Food & Liquor store located on the southeast corner of North Fresno Street and East Olive Avenue. The subject property was developed under previously approved Site Plan Review No. S-9022 (approved July 17, 1986) which authorized construction of a Circle “K” mini-mart with a self-service gas station and over the counter alcohol sales under a Type 20 (Off-sale Beer and Wine) alcohol license. Previously approved Conditional Use Permit Application No. C-11-160 (approved May 29, 2012) subsequently authorized an upgrade from a Type 20 (Off-Sale Beer and Wine) alcohol license to a Type 21 (Off-Sale Beer, Wine, and Distilled Spirits) alcohol license. It’s noted that the Circle “K” mini-mart was changed to the current Circle D establishment upon change of ownership/operation.
Development and use of the subject property (service station and convenience store with off-site alcohol sales) was lawfully established prior to the adoption of the current development code regulations. However, the establishment does not fully comply with the current regulations for off-sale alcohol establishments in accordance with FMC Section 15-2706 (Alcohol Sales Responsible Neighborhood Market Act); specifically, it does not comply with applicable location restrictions as the site is located near a sensitive use, near another alcoholic beverage establishment, within a high crime area, within a high concentrated area, and the number of establishments selling alcohol (for off-site consumption) exceeds the citywide ratio for off-site alcohol licenses. Therefore, in late 2022, the use was determined to be a legal non-conforming use pursuant to Section 15-402-A (Legal Non-Conforming Status).
In 2018, a fire occurred at the subject site which caused damages to the extent the store needed to close in order to perform necessary repairs. According to records, the owners/operator did not pursue renovations at that time. To date, the store remains closed.
Pursuant to FMC Section 15-404(F)(3), for non-residential and mixed-use districts, a Legal Non-Conforming use shall not be re-established in any structure if such Legal Non-Conforming use has ceased for a consecutive 12-month period within five years of January 3, 2016 (effective date of the current development code). Furthermore, once the five-year period from the effective date of the Code has passed, a Legal Non-Conforming Use shall not be re-established in any structure in a Non-Residential District if such Legal Non-Conforming Use has ceased for a consecutive period of 90 days or more.
The fire occurred during the five-year period from the effective date of the Code. Therefore, the establishment had 12 months to re-establish both the gas station and off-site sales of alcohol uses. The uses were not re-established and consequently considered abandoned in 2019. Therefore, the reestablishment of the site required separate new conditional use permits for both the gas station and off-site sales of alcohol; application records P22-04148 and P22-03906 respectively. Note: only the denial of the ABCUP is being considered.
The property is zoned CG (Commercial General). Pursuant to Section 15-2706-D-1 (Responsible Neighborhood Market Act) alcohol sales are uses subject to an approved conditional use permit.
Number of Existing and Allowed ABC Licenses
The subject site is located within Census Tract 24.00 which has a population of approximately 4862. The Department of Alcoholic Beverage Control (ABC) authorizes one (1) off-sale alcohol license per 1,120 people. Based on the population, Census Tract 24.00 allows up to four (4) off-sale alcohol licenses. Census Tract 24.00 currently has six (6) off-sale alcohol licenses. Should the proposed request be authorized, Census Tract 24.00 would have seven (7) off-sale alcohol licenses; three (3) more than allowed.
Store Overview
According to the project exhibits submitted as part of the application (Exhibits C-1 through C-4), approximately 1,940 square feet of the proposed store will be mercantile area with approximately 725 square feet of shelving and display area. The exhibits do not identify the total amount of shelve space to be dedicated to the display and sale of fresh produce and grocery products, nor the shelve space dedicated to general convenience items. In addition, the mercantile floor area will include self-serve beverage (soda and coffee) and hot food areas; and a 4’ wide X 8’ high X 10” deep shelves for liquor display. The store will also include a fifteen-door refrigerated cooler with nine doors for general beverages (e.g. soda, juice, dairy, water, beer, and wine) and various cold food items; and six doors for beer and wine. Approximately 64 square feet--3.2 percent of overall floor area and 8.8 percent of the shelve and display area--will be dedicated to the display and sale of alcoholic beverages.
The proposed hours of operation for the combination service station and store is 20 hours a day (6:00 AM to 2:00 AM) seven (7) days a week.
Use Classification Analysis
Pursuant to Chapter 15, Article 67, use classifications describe one or more uses having similar characteristics, but do not list every use or activity that may appropriately be within the classification. The Director shall determine whether a specific use shall be deemed to be within one or more use classifications, or not within any classification in this article. The Director may also determine that a specific use shall not be deemed to be within a classification, whether or not generally named within the classification, if its unique characteristics are substantially incompatible with those typical of uses named within the classification.
FMC Section 15-6704 (Commercial Use Classifications) lists and describes several food and beverage and retail sales use classifications which are as follows:
§ General Market. Retail food markets of food and grocery items for off-site preparation and consumption. Typical uses include supermarkets, neighborhood grocery stores, and specialty food stores, such as retail bakeries; candy, nuts, and confectionary stores; meat or produce markets; vitamin and health food stores; cheese stores; and delicatessens. This classification may include small-scale specialty food production such as pasta shops with retail sales. It’s noted the Development Code does not provide a specific use classification or description for Specialty Food Stores. However, the Planning and Development Director has established a formal policy that allows for an exception to be made to allow alcoholic sale at Specialty Grocery Stores if the store includes eight (8) key elements related to minimum gross floor area, ceiling and shelving height, lighting, flooring material, window signage, fresh food display, and architecture. Moreover, this policy (attached as Exhibit M [Policy and Procedure No C-005]) provides a definition for Specialty Food Grocer which is as follows:
o Specialty Food Grocer. A food and beverage retail sales establishments that (1) dedicates at least 70% of retail space to a specialized category of food products such as foods from a specific country, ethnicity, or locality; and (2) dedicates at least 10% of retail space to fresh foods such as dairy, (excluding ice cream), produce, meat, poultry, and fish. Alcohol may be sold, but may not constitute more than 5% of retail floor area.
The project as proposed does not demonstrate compliance with all eight (8) of the required elements for Specialty Food Grocers nor is 70 percent of the retail space dedicated to a specialized category of food products such as foods from a specific country, ethnicity, or locality. Furthermore, at least 10% of the retail space is not dedicated to fresh foods. Thus, the project does not meet the definition of a Specialty Food Grocer.
§ Healthy Food Grocer. A food and beverage retail sales establishment that (1) dedicates at least 50 percent of retail space to a general line of grocery products intended for home preparation, consumption and use; and (2) dedicates at least 30 percent of retail space to perishable goods including dairy, fresh, produce, fresh meats, poultry and fish, and frozen foods.
The project does not propose to dedicate at least 50 percent of the retail space to a general line of grocery products intended for home preparation, consumption and use nor does the project propose to dedicate at least 30 percent of the retail space to perishable goods including dairy, fresh, produce, fresh meats, poultry and fish, and frozen foods.
§ Liquor Stores. An establishment less than 10,000 square feet in size that sells liquor for offsite consumption and/or that devotes 30 percent or greater floor area to the selling of packaged alcoholic beverages (such as ale, beer, wine, and liquor) for off-site consumption.
Based on the project exhibits submitted as part of the application (Exhibits C-1 through C-4), the project would not be considered a liquor store given the overall area dedicated to alcohol display is 3.2 percent (< 30 percent).
§ Convenience Retail. Establishments primarily engaged in the provision of frequently or recurrently needed small personal items or services for residents within a reasonable walking distance. These include various general retail sales and personal services of an appropriate size and scale to meet the above criteria. Liquor Stores shall not be considered Convenience Retail.
Based on the exhibits submitted as part of the conditional use permit application, the use was determined to be classified as Convenience Retail and not a General Market, Specialty Food Grocer, or Healthy Food Grocer. While the store proposes to dedicate a portion of the floor area to grocery products, it is limited in comparison to the general convenience store items (chips, candy, soda, etc.) to be sold. This determination is further supported by the project operational statement (Exhibit C-1) which refers to the business as a “Convenience Store.”
For informational purposes, the North American Industry Classification System (NAICS) is the standard used by the Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy. NAICS was developed under the auspices of the Office of Management and Budget (OMB), to allow for a high level of comparability in business statistics among the North American countries.
NAICS provides Industry codes for several grocery and retail use classifications which are as follows:
§ Code 5411 - Grocery Stores: Stores, commonly known as supermarkets, food stores, and grocery stores, primarily engaged in the retail sale of all sorts of canned foods and dry goods, such as tea, coffee, spices, sugar, and flour; fresh fruits and vegetables; and fresh and prepared meats, fish, and poultry.
§ Code 445110 - Supermarkets and Other Grocery (except Convenience Stores): This industry comprises establishments generally known as supermarkets and grocery stores primarily engaged in retailing a general line of food, such as canned and frozen foods; fresh fruits and vegetables; and fresh and prepared meats, fish, and poultry. Included in this industry are delicatessen-type establishments primarily engaged in retailing a general line of food.
§ Code 457110 - Gasoline Stations with Convenience Store/Convenience Food with Gasoline Stations: This industry comprises establishments primarily engaged in retailing automotive fuels (e.g., gasoline, diesel fuel, gasohol, alternative fuels) in combination with a limited line of groceries. These establishments can either be in a convenience store (i.e., food mart) setting or a gasoline station setting. These establishments may also provide automotive repair services.
Based on the established NAICS code descriptions and exhibits submitted as part of the conditional use permit application, the proposed business/use would be classified as a Gasoline Station with Convenience Store/Convenience Food and not a Grocery Store or Supermarket.
Citywide Development Code
The proposed CUP shall comply with the requirements of FMC Section 15-2706: The Responsible Neighborhood Market Act.
Responsible Neighborhood Market Act
The RNMA was adopted by City Council on October 15, 2020, and took effect on November 15, 2020. The Act amended Chapter 15, Article 27, Section 15-2706 of the FMC relating to the sale of alcoholic beverages for off-site consumption.
The proposed conditional use permit shall comply with the requirements of FMC Section 15-2706. 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
Pursuant to FMC Section 15-2706-F (Location Restrictions for New Establishments), the following location restrictions shall apply to new and/or existing establishments that must obtain a CUP pursuant to the Responsible Neighborhood Market Act (RNMA).
1) Near Sensitive Uses. The establishment shall not be located within 1,000 feet of the following:
a. A public park, playground, recreational area including a trail that is immediately adjacent to a public park, 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 project does not comply with this restriction. The establishment is located approximately 650 feet from Webster Elementary School, approximately 625 feet away from a “Kids Kare” daycare facility, and approximately 875 feet away from Career Technical Education Charter (CTEC) School.
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 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 project does not comply with this restriction. The establishment is located approximately 100 feet from another establishment (Fresno Food Mart; Type 20) which has off-site alcohol sales.
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 project does not comply with this restriction. Per the Department of Alcoholic Beverage Control, the establishment is located in Crime Reporting Zone No. 2547 which is considered an area of high crime.
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 does not comply with this restriction. Per the Department of Alcoholic Beverage Control, the establishment is located in an area of high concentration. The project site is located in Census Tract 24.00 which currently has six (6) off-sale licenses; only four (4) are allowed.
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 will exceed 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.
The project does not comply with this restriction. 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.
Location Restrictions Exceptions
Pursuant to FMC Section 15-2706(F)(6), a new establishment may be excepted from location restrictions if the Review Authority determines all 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.
The project does not comply. As stated above, the project is located within an area of high crime as defined by California Business and Professions Code (CBPC) 23958.4(a)(3) et seq. No statement from the Chief of Police has been provided to confirm or deny that the proposed alcohol use would be detrimental to the public health, safety, or welfare of persons located in the area, and that it would increase the severity of existing law enforcement or public nuisance problems in the area. On July 20, 2023, the Fresno Police Department reviewed the application and provided a letter stating they do not oppose the project provided their conditions of approval be included should the application be approved.
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.
The project does not comply. At the time of denial, the property owner does not have a valid Conditional Use Permit to operate a fuel station. If the facility was open, it would only be permitted to operate as a convenience store. Therefore, the alcohol sales are not automatically incidental or appurtenant to fuel sales, and alcohol sales would have to be compared to the sale of other merchandise. Per the provided operational statement, the applicant intends on selling the following items at the market: milk, bread, eggs, salads, fruits, sandwiches, chips, candy, soda, coffee, fountain drinks, juices, ice cream, canned food, frozen food, pastries; and prepared foods like hotdogs, burritos. It is unknown what percentage of sales would be from these items and what percentage from alcohol. Therefore, there is insufficient evidence in the record to determine the 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 project does not comply. The establishment is located approximately 100 feet from another establishment which has off-site alcohol sales. Therefore, the establishment would not act as a public convenience or serve an underserved portion of the community, nor would the establishment enhance the vitality of the existing area. Moreover, there are already six (6) establishments within the same Census Tract (24.00) which sell alcohol for off-site consumption.
4) 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 project does not comply. Please refer to above in the Use Classification Analysis for a full discussion.
The Director was unable to make all of the aforementioned exceptions to the location restrictions pursuant to FMC Section 15-2706(F)(6). Therefore, the requested alcohol license was denied by the Director on October 16, 2023.
Fresno Police Department Review
The Central Policing District reviewed the subject application and does not oppose the project provided the applicant agrees to the conditions listed in its memorandum dated July 20, 2023 and complies with the completed security plan; see Exhibit I-1 - Draft Conditions of Approval for ABCUP P22-03906. 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.
Fresno Unified School District Review
On May 24, 2023, the Fresno Unified School District provided a letter stating they did not support the alcohol license request due to the proximity to Webster Elementary School.
Other Agencies
All comments received from the applicable agencies have been incorporated into the draft conditions of approval for Conditional Use Permit Application P22-03906. See Exhibit J-1 for all written agency comments received.
Public Notice and Input
Council District 7 Project Committee Review
During the processing of this application there was not an active Council District 7 Project Committee Review.
Public Notice
Pursuant to FMC Sections 15-5305 and 15-5007, the Planning and Development Department mailed a Notice of Intent to Take Action (Exhibit D), a neighborhood notice, to surrounding property owners within 1,000 feet of the subject site on September 15, 2023. No responses (letter, email, nor phone call) were received in response to the notice.
Notice of Action
On October 16, 2023, the Planning and Development Department issued a Notice of Action (Denial) for P23-03906. On October 31, 2023, the Director’s decision to deny the request was appealed by Baldev and Jasjit Khela of Circle D on October 31, 2023 (Exhibit G-1 - Appeal To Planning Commission). Therefore, the subject appeal of the application was considered by the Planning Commission on April 3, 2024.
Notice of Planning Commission Hearing
In accordance with FMC Section 15-5007, the Planning and Development Department mailed notices of this Planning Commission hearing to surrounding property owners within 1,000 feet of the subject property on March 22, 2024 (Exhibit H-1).
Planning Commission Hearing
The Planning Commission heard the appeal at its regular meeting on April 3, 2024. No members of the public spoke in support or opposition of the special permit during the hearing. After the close of the hearing, the Planning Commission based upon information presented, made a motion to uphold staff’s recommendation to deny the appellant’s appeal and uphold the action of the Planning and Development Department Director to deny Conditional Use Permit Application No. P22-03906. The vote was six (6) votes in favor to zero (0) votes against, one member absent; see Planning Commission Resolution Exhibit I.
On April 12, 2024, the Planning Commission’s decision to deny the request was appealed by Councilmember Nelson Esparza (Exhibit G-2 - Appeal To City Council). Therefore, the subject appeal of the application needs to be considered by the Council of the City of Fresno.
Notice of City Council Hearing
Pursuant to the requirements of Fresno Municipal Section 15-5007, a Notice of Public Hearing was mailed on May 24, 2024; see Exhibit H-2. A courtesy email was also sent on May 24, 2024, notifying various interested parties and stakeholders of the City Council hearing.
LAND USE PLANS AND POLICIES
Fresno General Plan
The Fresno General Plan designates the subject site for Commercial General planned land use and provides objectives to guide in the development of this project. The Commercial General planned land use designation is intended to accommodate a range of retail and service uses that are not appropriate in other areas because of higher volumes of vehicle traffic and potential impacts on other uses. Specific uses allowed include building materials, storage facilities with active storefronts, equipment rental, wholesale businesses, and specialized retail not normally found in shopping centers.
The Fresno General Plan provides goals, objectives, and policies to guide development. The following are applicable goals from the Fresno General Plan:
v Goal 9: Promote a city of healthy communities and improve quality of life in established neighborhoods.
v 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:
v Market saturation. Some neighborhoods feel they have an overabundance of establishments with off-sale licenses to sell alcohol.
v 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.
v 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.
ANALYSIS OF THE APPEAL
On April 12, 2024, the Planning Commission’s decision to deny the request was appealed by Councilmember Nelson Esparza. (Exhibit G-2 - Appeal To City Council). The Councilmember’s appeal letter states:
After reviewing the extenuating circumstances and seeing that there are letters of support from the surrounding neighborhood, I would like to appeal this decision for discussion among the City Council in order to further explore the cost-benefit of allowing this establishment to re-open with the respective CUP.
Staff acknowledges the basis for the appeal, and reiterates the subject site does not comply with any location restrictions contained within Fresno Municipal Code Section 15-2706(F) of the Responsible Neighborhood Market Act (RNMA). Furthermore, the Director was unable to make all of the location restrictions exceptions pursuant to FMC Section 15-2706(F)(6). Therefore, the requested alcohol license was denied.
Additionally, staff wants to recall the prior claims posted under the appeal by the applicant team. The initial appeal was submitted on October 31, 2023. On December 12, 2023, Melanie Halajian of Land Development Services-on behalf of Circle D-requested a later hearing date so that supplemental appeal materials could be submitted. The request was granted by City staff. On January 5, 2024, Halajian submitted the supplemental appeal materials. Staff’s response to the initial appeal and supplemental materials are as follows.
Appeal Letter dated October 31, 2023
Claim 1A:
“While the Circle D convenience store is located approximately 650 linear feet from Webster Elementary School, I would like to bring to your attention that the law specifies that the ABC may deny a license only if the location is within at least 600 feet from a school, public playground, and nonprofit youth facilities. Given this clarification, I believe our application is in compliance with the stated regulations. “
Response to Claim 1A:
The standards in which the City of Fresno reviews ABCUP applications are contained within Fresno Municipal Code Chapter 15 Article 27 (Responsible Neighborhood Market Act). Although the proposal may be acceptable pursuant to ABC regulations, the proposal is not compliant with the RNMA as noted in this staff report.
Supplemental Packet dated January 05, 2024
Claim 2A:
“The project will comply with the City of Fresno general market criteria by providing fresh fruit and produce, cold sandwiches, and dairy products.”
Response to Claim 2A:
The project does not comply. Please refer to above in the Use Classification Analysis for a full discussion.
Claim 2B:
“The sale of spirits will be limited to an approximately 75 sq. ft. shelving area… Wine will be displayed on four 18-inch-deep shelves approximately 8-feet long for a total of 48 sq. ft. or having a footprint of approximately 12 sq. ft. Beer will be available in the refrigerated section of the store in five cabinets occupying an area 15 feet wide, 5 feet high and two feet deep for a total of 150 square feet…”
Response to Claim 2B:
This claim identifies the shelf space that will be dedicated to the types of alcohol. It neither raises a claim against the location restrictions nor adds to the claim that the convenience store qualifies as a general market.
Claim 2C:
Circle D Food and Liquor will not sell magazines, e-cigarettes, or drug and smoking paraphernalia.
Response to Claim 2C:
This claim identifies products the convenience store will not sell. It neither raises a claim against the location restrictions nor adds to the claim that the convenience store qualifies as a general market.
Claim 2D:
Building and site improvements such as updated building colors and signage, modified landscape materials, and window additions will be done to enhance the property.
Response to Claim 2D:
This claim identifies various improvements that will be done to the site. It neither raises a claim against the location restrictions nor adds to the claim that the convenience store qualifies as a general market.
Since the Planning Commission hearing, the applicant has provided additional materials for the Council’s consideration, including a revised floor plan with merchandise plan; see Exhibit K-2. Note, the Development Director’s denial of the ABCUP request was based on the original exhibits provided for review; Exhibits C-1 through C-4. Although the Fresno Municipal Code does not afford staff the opportunity to receive and review a revised proposal in place of a denied proposal, a brief analysis of the revised floor plan is as follows.
Measurements of the revised project exhibits (Exhibit K-3), show approximately 1,940 square feet of the proposed store will be mercantile area with approximately 662 square feet of shelving and display area. Of the 662 square feet: 174 square feet would be dedicated to general market food items (26.3%); 393 square feet would be dedicated to convenience store items (including alcohol) (59.4%; alcohol 8.7%); and 94 square feet would be dedicated to the cashier’s counter, likely to contain convenience store items (14.3%). Based on the established code descriptions and exhibits, the proposed business/use would be classified as a Convenience Store and not a General Market.
FRESNO MUNICIPAL CODE FINDINGS
The required findings for a CUP under FMC Section 15-5306 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 F.
Fresno High-Roeding Community Plan
Upon reviewing the policies contained in the Fresno High-Roeding 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.
ENVIRONMENTAL FINDINGS
Pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15378, this item is not a project for the purposes of CEQA.
LOCAL PREFERENCE
Local preference was not considered because the project does not include a bid or award of a construction or service contract.
FISCAL IMPACT
Affirmative action by the City 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 in as much 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 Planning and Development Department.
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 Fresno High-Roeding 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. P23-03906, a request for an alcohol license, is not appropriate for the subject property.
If the Council of the City of Fresno decides to grant approval of the request to obtain a Type 21 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 Council 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.
Should the Council make the required findings, approval of the Conditional Use Permit application shall be subject to the applicant’s compliance with the Draft Conditions of Approval (Exhibit J-1).
Attachments:
Exhibit A-1 - Vicinity Map
Exhibit A-2 - Aerial Photo
Exhibit B-1 - Zoning Map
Exhibit B-2 - Planned Land Use Map
Exhibit C-1 - Project Operational Statement
Exhibit C-2 - Project Site Plan
Exhibit C-3 - Project Elevations
Exhibit C-4 - Project Floor Plan
Exhibit D - Notice of Intent to Take Action
Exhibit E - Denial Letter
Exhibit F - Fresno Municipal Code Findings
Exhibit G-1 - Appeal To Planning Commission
Exhibit G-2 - Appeal To City Council
Exhibit H-1 - Notice of Public Hearing (Planning Commission)
Exhibit H-2 - Notice of Public Hearing (City Council)
Exhibit I - Planning Commission Resolution 13845
Exhibit J-1 - Draft Conditions of Approval for ABCUP P22-03906
Exhibit J-2 - Draft Categorical Exemption for ABCUP P22-03906
Exhibit K-1 - Materials Submitted by Applicant For Planning Commission
Exhibit K-2 - Materials Submitted by Applicant For City Council
Exhibit K-3 - Staff Annotated Materials Submitted by Applicant For City Council
Exhibit L - Preformatted Letters of Support Submitted by Applicant
Exhibit M - Policy and Procedure No C-005
Exhibit N - Applicant Presentation
Exhibit O - Staff Presentation