REPORT TO THE PLANNING COMMISSION
April 21, 2021
FROM: MIKE SANCHEZ, Assistant Director
Planning & Development Department
THROUGH: PHILLIP SIEGRIST, Supervising Planner
Development Services Division
BY: JOSE VALENZUELA, Planner III
Development Services Division
SUBJECT
Title
Consideration of Conditional Use Permit Application No. P20-02834, a request to establish a Type 20 alcohol license (Package Store - sale of beer and wine for consumption off the premises where sold) for a proposed 7-Eleven automobile service station and convenience store located at 2020 West Shaw Avenue at the northwest corner of West Shaw and North West Avenues (Council District 2).
1. CONSIDER Environmental Assessment No. P20-02456/P20-02834, dated April 21, 2021, a determination that the proposed project is exempt from the California Environmental Quality Act (CEQA) through a Class 32 (In-fill Development Projects) Categorical Exemption; and,
2. DENY the applicant’s appeal and UPHOLD the action of the Planning and Development Department Director to deny Conditional Use Permit Application No. P20-02834 requesting to establish a Type 20 Off-Sale Beer & Wine alcohol sales license for a proposed 7-Eleven convenience store and service station.
Body
EXECUTIVE SUMMARY
Conditional Use Permit Application No. P20-02834 was filed by Bill Robinson, of Sol Development Associates, LLC., and requests authorization to establish a State of California Alcoholic Beverage Control (ABC) Type 20 alcohol license (Off-Sale Beer & Wine [Package Store] - Authorizes the sale of beer and wine for consumption off the premises where sold) for a proposed 7-Eleven convenience store and service (gas fueling) station.
Related Conditional Use Permit Application No. P20-02456 was also filed for purposes of facilitating the physical development of the site with a ±3,011 square-foot convenience store building and service (gas) station, which includes a six-dispenser/12-station fuel canopy. On January 14, 2021, the Planning & Development Department Director approved related Conditional Use Permit Application No. P20-02456, subject to the conditions of approval dated January 14, 2021.
However, on January 26, 2021, the Planning & Development Department Director denied Conditional Use Permit Application No. P20-02834 requesting authorization to establish an off-sale alcohol license for the approved convenience store as the project does not satisfy two of the required location restrictions of Section 15-2706-F of the Fresno Municipal Code (FMC), and the required findings for conditional use permits under FMC Section 15-5306 cannot be made (Exhibit M, Denial Letter).
The Director’s decision to deny the request to establish an off-sale alcohol license was appealed by the applicant on February 9, 2021 (Exhibit N). No appeals pertaining to the Director’s approval of related Conditional Use Permit Application No. P20-02456 were received. Therefore, only the alcohol related application is being considered by the Planning Commission.
Staff recommends upholding the Director’s denial 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
Conditional Use Permit Application No. P20-02456, as approved with conditions dated January 14, 2021, authorizes the construction a ±3011 square-foot convenience store (7-Eleven) with a service (gas fueling) station which includes a six-dispenser/12-station fuel canopy. Additional on and off-site improvements will be provided including but not limited to parking, landscaping, a two-cell trash enclosure, two points of ingress and egress, and curbs, gutters, and sidewalks.
Conditional Use Permit Application No. P20-02834 requests authorization to establish a State of California Alcoholic Beverage Control (ABC) Type 20 alcohol license (Off-Sale Beer & Wine [Package Store] - sale of beer and wine for consumption on off the premises where sold) for the related 7-Eleven convenience store.
For informational purposes, the applicant will be relocating an existing Type 20 alcohol license (Off-Sale Beer and Wine - for consumption off the premises where sold) from the existing 7-Eleven located at 1784 West Shaw Avenue, directly across the street on the northeast corner of West Shaw and North West Avenues. In addition, the applicant will be closing the existing 7-Eleven store after it relocates to the new location at the subject address, on the northwest corner of West Shaw and North West Avenues.
The subject property is zoned CMX (Corridor/Center Mixed-Use). Pursuant to Table 15-1102 (Land Use Regulations - Mixed-Use Districts) of the FMC, alcohol sales (off-site) are permitted in the CMX zone district with an approved conditional use permit and with the requirements in FMC Section 15-2706, including applicable location restrictions.
Ordinance No. 2020-045 (Exhibit S), otherwise known as the Responsible Neighborhood Market Act (RNMA), was adopted by City Council on October 15, 2020, and took effect on November 15, 2020. The RNMA amended Chapter 15, Article 27, Section 15-2706 of the FMC relating to the sale of alcoholic beverages for off-site consumption and as such there are new requirements by which to evaluate off-site alcohol applications. Action by the Planning Commission on this item shall be reviewed with the new provisions and requirements of the RNMA.
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 (ABC). As such, ABC is 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 43.03. According to ABC, Census Tract 43.03 currently has three (3) active off-sale alcohol licenses; two (2) Type 20 and one (1) Type 21. The existing 7-Eleven, located at 1784 West Shaw Avenue, which is seeking to relocate for the proposed project, holds one of the active Type 20 alcohol licenses within Census Tract 43.03.
ABC authorizes one (1) off-sale alcohol licenses per 1,120 people within Census Tract 43.03, which has an approximate population of 4,162. Per ABC, a total of three (3) off-sale alcohol licenses are allowed in Census Tract 43.03.
Based on the information available, Census Tract 43.03 is within the allowed number of off-sale alcohol licenses, and is not overconcentrated.
Fresno Police Department Review
The Fresno Police Department, Northwest Policing District reviewed the subject application and does not oppose the issuance of a State of California ABC Type 20 alcohol license at this location because it is not located in an area documented as high crime. The typical reporting district experiences an average of 453 criminal offenses per year. The reporting district in which the subject establishment is located has experienced approximately 191 offenses; which is below the average. The Fresno Police Department provided a supplemental memo stated April 16, 2021, stating that 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, according to FMC Section 15-2706-F-6.
The Fresno Police Department provided conditions to be incorporated into the Draft Conditions of Approval dated April 21, 2021 (Exhibit R). Should the Planning Commission resolve to approve the request to establish a Type 20 ABC license, the Standard Fresno Police Department ABC CUP conditions contained in the attached Draft Conditions of Approval dated April 21, 2021, and all conditions included in their Comment Letters dated September 9, 2020 and April 16, 2021 (Exhibit K), shall apply. Standard Police Department ABC CUP conditions include compliance with the FMC limiting noise and unlawful nuisance, compliance with ABC rules and employee education, video camera surveillance, limitations on alcohol types and serving sizes, and limitations on on-site alcohol consumption and loitering.
Citywide Development Code
The proposed conditional use permit shall comply with the requirements of FMC Section 15-2706.
Location Restrictions
According to FMC Section 15-2706-F (Location Restrictions for New Establishments), new 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 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 establishment is not located within 1,000 feet of a sensitive use.
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.
There are currently four existing off-sale alcoholic beverage establishments located at the intersection of West Shaw and North West Avenues: (1) one of which is the applicant group (7-Eleven (Type 20) at 1784 West Shaw Avenue), which is proposed to be relocated to the subject site; (2) Rite Aid Pharmacy (Type 21) located on the southwest corner of West Shaw and North West Avenues, approximately 250 feet south, and located within a separate Census Tract (46.01); (3) ALDI Grocery Store (Type 20) located within the same shopping center at approximately 420 feet; and (4) EZ Mart Convenience store and service station (Type 20) at approximately 300 feet, located on the southeast corner of West Shaw and North West Avenues, which is also within a separate census Tract (46.01). All four existing establishments are within a 1,000-foot radius of each other.
Even though the applicant is requesting to relocate their existing license from its current location to the proposed project site, the applicant cannot satisfy this location restriction because the proposed new location is still within a 1,000-foot radius of three other alcohol beverage establishments.
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).
As demonstrated in the Police Department Review section above, the proposed establishment 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, according to FMC Section 15-2706-F-6. Therefore, the proposed establishment 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 subject site is located in Census Tract 43.03. In this Census Tract there are three (3) existing licenses and three (3) are allowed. As mentioned in the ABC Regulations section above, the request to relocate the existing Type 20 alcohol license would not result in an increase in off-sale alcoholic beverage licenses within Census Tract 43.03. The establishment is not located within an area of high concentration.
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 (Cancel and Transfer): or (3) an existing establishment that is in good standing which has a change in the ABC License holder, specifically partner franchisees.
Cancel and Transfer requirement: The RNMA’s Cancel and Transfer requirement provides that new establishments less than 10,000 square feet shall transfer two (2) ABC licenses and cancel one (1) ABC license in good standing from within a Council District identified as having an overconcentration of ABC licenses for off-sale use, as determined by the Director following review of data prepared by the California Department of Alcoholic Beverage Control. One ABC license will be submitted by the applicant to the Alcoholic Beverage Control for permanent cancellation. A canceled ABC license cannot be reactivated or reinstated.
None of the exceptions to the citywide ratio apply. In addition, the applicant does not propose to cancel or transfer any additional ABC licenses as required. If approved, the applicant/operator shall demonstrate compliance with the Cancel and Transfer provision of the RNMA prior to operation.
The establishment/proposed project is not in compliance with two of the five aforementioned location restrictions pursuant to FMC Section 15-2706-F. It is located within 1,000 feet of three existing off-sale alcoholic beverage establishments (Rite Aid, ALDI, and EZ Mart) and the number of sites selling alcohol for off-site consumption exceeds one license per 2,500 residents. Therefore, the proposed new alcohol CUP is prohibited per the FMC unless an exception is applicable.
Exception from Location Restrictions
According to FMC Section 15-2706-F-6, a new establishment may be excepted from 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.
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.
The proposed 7-Eleven will offer for sale to the general public a wide variety of goods and services, including packaged foods, fountain soft-drinks, coffees, teas, bottled beverages, tobacco, fresh and healthy food, beer and wine (a floor plan for the 7-Eleven, depicting areas or percentages of areas devoted to display of respective goods for sale, has not been provided). The Director was unable to make the required exception findings and therefore, denied the request to establish a Type 20 alcohol license on January 26, 2021.
As stated in the Police Department Review section above, staff received a supplemental memo from the Fresno Police Department dated April 16, 2021 (Exhibit K), which stated that 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, according to FMC Section 15-2706-F-6. Therefore, the proposed use and location meets exception (a).
Fresno Unified School District (FUSD) Review
FUSD reviewed the proposed project and provided comments indicating the district did not support this application. Their comment letter, dated August 24, 2020, expressed concerns regarding the Type 20 application and potentially dangerous interactions between students and the proposed location. FUSD indicated their response was subject to the State of California Alcoholic Beverage Control (ABC) Act and the Fresno Police Department’s review and support of the proposed project. Per the State ABC Act, an alcohol license can be refused by the State if the location is within 600 feet from schools. The project location is approximately 4,322 feet from Gibson Elementary School which is more than 3,722 feet further than the State minimum distance requirement. In addition, as mentioned in the Fresno Police Department Review section above, the Fresno Police Department is not in opposition to the project and provided conditional requirements which have been incorporated into the Draft Conditions of Approval dated April 21, 2021.
Other Agencies
All comments received from the applicable agencies have been incorporated into the draft conditions of approval for Conditional Use Permit Application No. P20-02834. See Exhibit K for all written agency comments received.
Public Notice and Input
Council District 2 Project Committee Review
The Council District 2 Project Review Committee reviewed this project (P20-02456 and P20-02834) on September 14, 2020 and voted to approve with no additional comments and/or recommendations.
Notice of Intent to Take Action
Pursuant to FMC Section 15-5305, the Planning and Development Department mailed a Notice of Intent to Take Action (Exhibit L) to surrounding property owners within 1,000 feet of the subject site on November 6, 2020, in accordance with FMC Section 15-5007. No comments or letters of concern were received. Therefore, a Notice of Action was not mailed.
The Director’s decision to deny P20-02834, a request to establish an off-sale alcohol license, was appealed by the applicant on February 9, 2021 (Exhibit N). Therefore, the subject application (P20-02834) shall be considered by the Planning Commission.
Notice of Planning Commission Hearing
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 on March 26, 2021 (Exhibit O). No comments have been received to date.
LAND USE PLANS AND POLICIES
The Fresno General Plan designates the subject property for Corridor/Center Mixed-Use planned land use and provides objectives to guide in the development of this project. The Corridor/Center Mixed-Use planned land use designation is intended to allow for either horizontal or vertical mixed-use development along key circulation corridors in the city where height and density can be easily accommodated. Ground-floor retail and upper-floor residential or offices are the primary uses, with residential uses, personal and business services, and public and institutional space as supportive uses. Development will facilitate the transformation of existing transportation corridors into vibrant, highly walkable areas with broad, pedestrian-friendly sidewalks, trees, landscaping, and local-serving uses with new buildings that step down in relationship to the scale and character of adjacent neighborhoods.
The Fresno General Plan provides goals, objectives, and policies to guide development. The following are applicable goals from the Urban Form, Land Use & Design, and Public Utilities & Services elements of 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 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.
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.
Bullard Community Plan
Upon reviewing the goals and policies contained in the Bullard Community Plan, staff has determined that there are no applicable policies restrictive to alcohol sales than those already provided in the Fresno General Plan and the Fresno Municipal Code. However, should there be a conflict between the FMC and the Bullard Community Plan, pursuant to Section 15-104-B-4 of the FMC, the FMC shall control.
Fresno County Airport Land Use Compatibility Plan
The proposed project is located within the area of influence under the Fresno County Airport Land Use Compatibility Plan (ALUCP). The project site is located within the Fresno Yosemite International Airport’s (FYIA) Safety Zone 7 - Precision Approach Zone. Listed uses such as stadiums and similar uses are prohibited in Traffic Pattern Zone 7. The proposed off-sale establishment is not a listed prohibited use. Therefore the proposed project is compatible and in compliance with the Airport Land Use Compatibility Plan. Therefore, the City of Fresno Airports Department anticipates no adverse impacts on Fresno Yosemite International Airport as a result of the proposed project and the use is consistent with the Fresno County Airport Land Use Compatibility Plan.
FRESNO MUNICIPAL CODE FINDINGS
The required findings under Section 15-5306 of the Fresno Municipal Code 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; 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 to deny the special permit under FMC Section 15-5306 (A, B, C, D, E, & F) are appropriate. These findings are attached as Exhibit P.
If the Planning Commission decides to grant approval of the request to obtain a Type 20 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. In order to determine that an exception to the Location Restrictions will apply, the Planning Commission shall also find that there is substantial evidence in the administrative record to determine all of the following requirements as set forth in FMC Section 15-2706-F-6 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.
As stated in the Fresno Police Department Review section, the supplemental memo dated April 16, 2021 (Exhibit K), concludes that this exception applies.
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
No environmental findings are necessary to adopt a staff recommendation for denial for the project, Conditional Use Permit Application No. P20-02834, to establish a Type 20 Off-Sale Beer & Wine alcohol sales license.
However, should the Planning Commission make the required findings in accordance with FMC Section 15-5306 and also find all exceptions to the Location Restrictions, and grant approval of the request to obtain a Type 20 ABC license, then adoption of a Section 15332/Class 32 (Infill Development) Categorical Exemption, pursuant to the California Environmental Quality Act (CEQA) Guidelines, is considered appropriate. The attached draft Categorical Exemption was prepared for Environmental Assessment No. P20-02456/P20-02834 and dated April 21, 2021 (Exhibit Q) may be adopted by the Commission 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, Bullard Community Plan, and the Fresno County Airport Land Use Compatibility Plan, compliance with the specific provisions of 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 Conditional Use Permit Application No. P20-02834, a request to obtain a Type 20 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 conditional use permit application shall be subject to the applicant’s compliance with the Draft Conditions of Approval dated April 21, 2021, including the requirement to meet the Cancel and Transfer provisions of the RNMA (Exhibit R).
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: Planned Land Use
Exhibit D: Zoning Map
Exhibit E: Project Information Tables
Exhibit F: Noticing Map
Exhibit G: Master Application/ Owner’s Letter of Authorization
Exhibit H: Operational Statement
Exhibit I: Exhibits (Site Plan & Elevations)
Exhibit J: Alcohol License Map
Exhibit K: Department/Agency Comments
Exhibit L: Notice of Intent to Take Action
Exhibit M: P20-02834 CUP Denial Letter
Exhibit N: Applicant Appeal Letter
Exhibit O: Public Hearing Notice & Noticing Map
Exhibit P: Fresno Municipal Code Findings
Exhibit Q: Draft Environmental Assessment
Exhibit R: Draft Conditions of Approval
Exhibit S: Ordinance No. 2020-045