REPORT TO THE PLANNING COMMISSION August 16, 2017 FROM: MIKE SANCHEZ, Assistant Director Development Services Division THROUGH: MCKENCIE CONTRERAS, Supervising Planner Development Services Division BY: PHILLIP SIEGRIST, Planner II Development Services Division SUBJECT ..Title Consideration of Conditional Use Permit Application No. C-17-079, located on the northwest corner of East Jensen Avenue and State Highway 99. (Council District 3) - Development and Resource Management Department. 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 EXECUTIVE SUMMARY Conditional Use Permit Application No. C-17-079 was filed by Ken Vang of Precision Engineering, Inc., on behalf of George Beal of Beal Developments, LLC., and pertains to �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 Quick 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, close 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 Quick 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 August 16, 2017 (Exhibit I) in their entirety if the Planning Commission 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 According to the ABC, census tract 11 currently has seven active off-sale alcohol licenses; five more than has been authorized for that census tract. Therefore the census tract is over concentrated. Citywide Development Code 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 project is in compliance with only one of the locational requirements/restrictions and would not be located within 500 feet of any of the identified sensitive uses. However, the proposed project is not in compliance with the other three locational requirements/restrictions. The proposed project is located within both high crime and high concentration areas (according to ABC and PD), and within 500 feet of an existing establishment. Therefore, the proposed new alcohol CUP is prohibited per the FMC. 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: 1. The proposed use is not located within an area in which the Chief of Police has determined, based upon quantifiable information, that the proposed use a) would be detrimental to the public health, safety, or welfare of persons located in the area, or b) would increase the severity of existing law enforcement or public nuisance problems in the area. 2. The proposed off-premises sale of alcoholic beverages is incidental and appurtenant to a larger retail use and provides for a more complete and convenient shopping experience. 3. The proposed outlet for the off-premises sale of alcoholic beverages would act as a public convenience or necessity to an underserved portion of the community and/or enhance the vitality of an existing commercial area without presenting a significant adverse impact on public health or safety. The Director was unable to make any of these findings and therefore, is denying the request to establish a Type 20 alcohol license. 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 Quick 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 not in compliance with the location restrictions mentioned above and therefore 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 District 3 Plan Implementation Committee The District 3 Plan Implementation Committee has no comment on this project at this time. Notice of Planning Commission Hearing The Development and Resource Management Department mailed notices of this Planning Commission hearing to surrounding property owners within 1,000 feet of the subject property (Exhibit E). No comments have been received to date. FRESNO MUNICIPAL CODE FINDINGS The required findings under Section 15-5306 of the FMC are as follows: a. The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of this Code and all other chapters of the Municipal Code; and, b. The proposed use is consistent with the General Plan and any other applicable plan and design guideline the City has adopted; and, c. The proposed use will not be substantially adverse to the public health, safety, or general welfare of the community, nor be detrimental to surrounding properties or improvements; and, d. The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and reasonably foreseeable future land uses in the vicinity; and, e. The site is physically suitable for the type, density, and intensity of use being proposed, including access, emergency access, utilities, and services required. Based upon analysis of the application, staff concludes that the required findings of FMC Section 15-5306 (a & c) cannot be made. These findings are attached as Exhibit J. 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. The Planning Commission 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. 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 provided supplemental information for the Planning Commission to consider in determining whether the proposed use could be excepted from the location restrictions. Based on a sales analysis performed by Kalibrate, the proposed Johnny Quick 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. Based on the information provided, the applicant requests the Planning Commission to determine that the proposed off-premises sale of alcoholic beverages is incidental and appurtenant to a larger retail use and therefore is excepted from location restrictions. The supplemental information is attached as Exhibit K. ENVIRONMENTAL FINDINGS Due to staff's recommendation for denial an environmental assessment was not completed for the proposed project. However, should the Planning Commission 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 will be made in accordance with the California Environmental Quality Act Guidelines. CONCLUSION The appropriateness of the proposed project has been examined with respect to its consistency with goals and policies of the Fresno General Plan and the Edison Community Plan; compliance with the provisions of the FMC; 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. C-17-079 is not appropriate for the project site. 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-E 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 Conditions of Approval dated August 16, 2017. 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 Map Exhibit D - Zoning Map Exhibit E - Noticing Map Exhibit F - Project Information Tables Exhibit G - Exhibits (Conceptual Site Plan, Floor Plan, Elevations) Exhibit H - Operational Statement Exhibit I - Conditions of Approval dated August 16, 2017; including memoranda from responsible or commenting agencies Exhibit J - Fresno Municipal Code Findings Exhibit K - Applicant's Supplemental Information