REPORT TO THE PLANNING COMMISSION DECEMBER 19, 2018 FROM: MIKE SANCHEZ, Assistant Director Development Services Division THROUGH: BONIQUE EMERSON, Planning Manager Development Services Division McKENCIE PEREZ, Supervising Planner Development Services Division BY: JARRED OLSEN, Planner II Development Services Division SUBJECT ..Title Consideration of Conditional Use Permit Application No. P18-02640, located on the northeast corner of North Willow Avenue and East Kings Canyon Road (Council District 5) - Development and Resource Management Department. Based upon the evaluation contained in this report, staff recommends that the Planning Commission take the following actions: 1. ADOPT Environmental Assessment No. P18-02640 dated December 19, 2018, a determination that the proposed project is exempt from the California Environmental Quality Act (CEQA) through Class 1 and Class 3 Categorical Exemptions. 2. ADOPT findings pursuant to Government Code Section 65863 that the project is consistent with the Housing Element and that there is substantial evidence in the record that remaining sites identified in the Housing Element can accommodate the City of Fresno's share of the Regional Housing Needs Assessment (RHNA). 3. APPROVE Conditional Use Permit Application No. P18-02640 requesting authorization to develop a 3,052-square-foot convenience store and service station with eight fueling positions, subject to compliance with the Conditions of Approval dated December 19, 2018. 4. DENY Conditional Use Permit Application No. P18-02640 requesting authorization to establish a State of California Alcoholic Beverage Control (ABC) Type 21 (Package Store - sale of beer, wine and distilled spirits for consumption off the premises where sold) alcohol license for the proposed convenience market. ..Body EXECUTIVE SUMMARY Conditional Use Permit Application No. P18-02640 was filed by Lacy Dodge of TAIT & Associates, and pertains to approximately �0.56 acres located on the northeast corner of North Willow Avenue and East Kings Canyon Road. The applicant requests authorization to develop a 3,052-square-foot convenience store and service station with eight fueling positions and to establish an ABC Type 21 (Package Store - sale of beer, wine and distilled spirits for consumption off the premises where sold) alcohol license for the proposed convenience store. Staff is recommending denial of the Type 21 alcohol license request. Staff recommends denial of the portion of Conditional Use Permit Application No. P18-02640 requesting an alcohol use based on substantial evidence detailed in this staff report that Findings B, C, and D contained in Section 15-5306, as well as a Finding of Section 15-2706-E-5 of the Fresno Municipal Code (FMC) cannot be made due to documented high crime, over concentration of licenses in the area, and close proximity to similar uses. The proposed project is located on a site that was identified as a location for potential housing development as part of the City's Housing Element. California Government Code Section 65863(b)(2) states that whenever an approval is made for a project that provides housing units less than that identified in the Housing Element, a finding must be made, with substantial evidence, that indicates the remaining sites in the Housing Element that accommodates the City's share of the Regional Housing Needs Assessment (RHNA) must be sufficient, or else the City must within 180 days identify and make available additional adequate sites to accommodate the City's share of the regional housing need. BACKGROUND Conditional Use Permit Application No. P18-02640 requests to develop the site with an eight fuel position service station and 3,052-square-foot convenience market and establish a State of California Alcoholic Beverage Control Type 21 alcohol license (Package Store - sale of beer, wine and distilled spirits for consumption off the premises where sold) for the proposed market. The subject property is zoned CMX (Corridor/Center Mixed Use). Per FMC Table 15-1102, service stations and alcohol sales are permitted in the CMX (Corridor/Center Mixed Use) zone district subject to an approved Conditional Use Permit and additional regulations pursuant to FMC Sections 15-2706 and 15-2755. 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 upgrade of a State of California Alcoholic Beverage Control (ABC) license at this location due to being located within a high crime reporting district and an over concentration of licenses in the area. 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 803 offenses so far this year-approximately 78% higher than average. Therefore, the Fresno Police Department recommends denial of the application as the proposed use would be detrimental to the public health, safety, or welfare of persons and businesses located in the surrounding area. Crime Reporting District Number 2663 Total Number of Reporting Districts 504 Total Number of Offenses in All Reporting Districts 228,678 Average Number of Offenses per District 452.83 120% of Average Number of Offenses 543 Total Number of Offenses in Reporting District 803 Source: California Department of Alcohol and Beverage Control The Fresno Police Department did not provide conditions to be incorporated into the Conditions of Approval dated December 19, 2018 (Exhibit H). However, should the Planning Commission decide to grant approval of the request to establish a Type 21 ABC license, the Standard Fresno Police Department ABC CUP Conditions contained in the attached Conditions of Approval dated December 19, 2018 (see Exhibit H) shall apply. Standard 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 servings, and limitations on on-site alcohol consumption and loitering. Fresno Unified School District (FUSD) Review FUSD provided comments indicating the district did not support this application. The existing convenience store is approximately 750 feet from Greenberg Elementary School. 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. Number of Existing and Allowed ABC Licenses Census Tract Number 29.03 Census Tract Population 4,329 Off-Sale Licenses per Census Tract 1,098 Off-Sale Licenses Allowed in Census Tract 3 Off-Sale Licenses Existing in Census Tract 9 Source: California Department of Alcohol and Beverage Control Other Agencies All comments received from the applicable agencies have been incorporated into the conditions of approval for Conditional Use Permit Application No. P18-02640. See Exhibit H for all written agency comments received. Citywide Development Code Alcohol Sales Article 27 (Standards for Specific Uses and Activities), Section 15-2706 (Alcohol Sales), Sub-Section E (Location Restrictions for New Establishments) prohibits new off-sale alcohol establishments that are under 10,000 square feet 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. Since the proposed project is located within: 1) a high concentration area, 2) a high crime area (according to ABC), and 3) located within 500 feet of another alcoholic beverage establishment, the proposed alcohol sale use is prohibited. The exceptions to this requirement are as follows: 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-nor has the Chief of Police provided staff with any determination-and therefore, the Director is recommending denial of the authorization to sell alcohol. The project is in compliance with the other locational requirements and would not be within 500 feet of a school or other sensitive uses. Service Stations Article 27 (Standards for Specific Uses and Activities), Section 15-2755 (Service Stations) establishes specific requirements for these types of uses. The proposed project complies with all applicable standards, subject to the Conditions of Approval found in Exhibit H. Public Notice and Input Council District Plan Implementation Committee The District 5 Plan Implementation Committee voted to approve the service station and deny the alcohol use on October 22, 2018. 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 D). No comments have been received to date. LAND USE PLANS AND POLICIES Fresno General Plan The Fresno General Plan designates the subject property for the Corridor/Center Mixed Use planned land use and provides objectives to guide in the development of this project. The Corridor/Center planned land use designation is to allow for horizontal and vertical mixed-use development in multiple story buildings along key circulation corridors where height and density can be easily accommodated. Ground-floor retail and upper-floor residential or offices are the primary uses, with 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. This designation will largely apply along major roadways, at targeted locations between regional Activity Centers. The Fresno General Plan provides goals, objectives, and policies to guide development. The following are applicable goals from the Fresno General Plan. 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 proposed convenience store and service station promotes increased opportunity, economic development, and business to serve the neighborhood and it preserves and protects resources within the City by not expanding development onto sites where infrastructure and services do not exist. 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 the opinion of staff 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. Roosevelt Community Plan Upon reviewing the policies contained in the Roosevelt 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. Housing Element This project is on a site listed in the Housing Element Sites Inventory. The Housing Sites Inventory establishes the minimum capacity of this site to be nine units with an affordability categorization of Very Low/Low; the proposed project does not include housing. California Government Code Section 65863(b) requires that when a jurisdiction permits development on a Housing Element Site at less than the established minimum residential capacity, the following findings (supported by substantial written evidence) must be made at the time of approval: the reduction is consistent with the adopted General Plan (including the Housing Element) and that the remaining sites identified in the Housing Element are adequate to accommodate the City of Fresno's share of the Regional Housing Needs Allocation. These findings can be found in Exhibit L. FRESNO MUNICIPAL CODE FINDINGS Conditional Use Permit The required findings under Section 15-5306, Conditional Use Permit, 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, b, & c) cannot be made. The Director is unable to make a finding allowing an exception to the new establishment locational restrictions, and the high crime nature of the area would be detrimental to the public health, safety, or welfare of persons and businesses located in the surrounding area. These findings are attached as Exhibit K. If the Planning Commission decides to grant approval of the request to establish a Type 21 ABC license, the Commission must find that there is substantial evidence in the administrative record to make all the findings mentioned above, as well an exception found in Section 15-2706-E-5 and amend them to include the sale of alcohol. ENVIRONMENTAL FINDINGS Section 15301 of the CEQA Guidelines addresses projects involving existing facilities. Projects that fall within Class 1 consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination. Section 15303 of the CEQA Guidelines addresses new construction of small structures. Projects that fall within Class 3 consist of a store, motel, office, restaurant or similar structure not involving the use of significant amounts of hazardous substances, and not exceeding 10,000 square feet in floor area on sites zoned for such use if not involving the use of significant amounts of hazardous substances where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive. The proposed project is consistent with the exemption because the project is requesting authorization to establish licensing for alcoholic beverage sales which is permitted in the existing CMX (Corridor/Center Mixed Use) zone district by conditional use permit and is consistent with the Corridor/Center Mixed Use planned land use designation applicable to the site. The proposed project is subject to authorization by special permit. No adverse environmental impacts will occur as a result of the proposed project. The site has no value as habitat for endangered, rare, or threatened species and complies with all conditions of the Class 1 and Class 3 Categorical Exemptions. The proposed structure is less than 10,000 square feet, does not use significant amounts of hazardous substances, all necessary public services and facilities are available and the surrounding area is not environmentally sensitive. 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 Roosevelt 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 approval of the development of a convenience store and service station is appropriate for the project site, however the approval of the alcohol use of Conditional Use Permit Application No. P18-02640 is not. 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 make the required findings of FMC Sections 15-2706-E-5 and 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 December 19, 2018. Action by the Planning Commission is final unless appealed to City Council in accordance with Section 15-5017 of the FMC. Attachments: Exhibit A - Aerial Photograph of Subject Property Exhibit B - Planned Land Use Map Exhibit C - Zoning Map Exhibit D - Noticing Map Exhibit E - Project Information Tables Exhibit F - Exhibits (Site Plan, Elevations, Floor Plans) Exhibit G - Operational Statement Exhibit H - Conditions of Approval Exhibit I - Fresno Municipal Code Findings Exhibit J - Categorical Exemption Exhibit K - Fresno Municipal Code Regulations Exhibit L - Housing Element Findings