REPORT TO THE PLANNING COMMISSION May 20, 2020 FROM: Dan Zack, Assistant Director Planning & Development Department THROUGH: RALPH KACHADOURIAN, Supervising Planner Development Services Division BY: PHILLIP SIEGRIST, Planner III Development Services Division SUBJECT ..Title Consideration of Conditional Use Permit Application No. P19-05984, a request to upgrade an existing Type 20 alcohol license (Package Store - sale of beer and wine for consumption off the premises where sold) to a Type 21 alcohol license (Package Store - sale of beer, wine, and distilled spirits for consumption off the premises where sold) for the existing Johnny Quik Food Store and Gas Station located at 7995 North Cedar Avenue at the southwest corner of North Cedar and East Nees Avenues. (Council District 6) 1. CONSIDER Environmental Assessment No. P19-05984, dated May 20, 2020, a determination that the proposed project is exempt from the California Environmental Quality Act (CEQA) through a Class 1 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. P19-05984 requesting to upgrade the Johnny Quik Type 20 Off-Sale Beer & Wine alcohol sales license to a Type 21 Off-Sale General License to include distilled spirits. ..Body EXECUTIVE SUMMARY Conditional Use Permit Application No. P19-05984 was filed by Ken Vang, of Vang Incorporated Consulting Engineers, on behalf of Sterling Hartel Development Inc., and requests authorization to upgrade from an existing 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) to a Type 21 alcohol license (Off-Sale General [Package Store] - sale of beer, wine, and distilled spirits for consumption on the licensed premises). No physical development is proposed under this special permit application. On February 21, 2020, the Planning & Development Department Director denied the Conditional Use Permit application due to the location restrictions of Section 15-2706-E of the Fresno Municipal Code (FMC) and the inability to make the required finings for conditional use permits under FMC Section 15-5306 (Exhibit L, Denial Letter). The Director's decision to deny the request was appealed by the applicant on February 24, 2020 (Exhibit M). Therefore the subject application is being considered by the Planning Commission. Staff recommends upholding the denial based on substantial evidence detailed in this staff report that; 1) the special permit application will not meet the location requirements for alcohol sales nor the exception provisions specified under Section 15-2706-E; and 2) specific Findings made by the Director in denial of the Conditional Use Permit contained in Section 15-5306 remain valid. BACKGROUND The existing Johnny Quik Food Store and Gas Station has a Type 20 off-sale alcohol license (beer & wine) and the applicant is requesting to upgrade to a Type 21 off-sale general license to include the sale of distilled spirits. There are no other changes being proposed by the applicant to the current retail operations of the market. The market operates from 6:00 am - 12:00 am Sunday through Thursday and 6:00 am - 1:00 am Friday and Saturday. The subject property is zoned CC/UGM/cz (Commercial-Community/Urban Growth Management/conditions of zoning). Pursuant to Table 15-1302 of the FMC, alcohol sales are permitted in the CC zone district subject to an approved Conditional Use Permit and the requirements of Section 15-2706 of the FMC. The current ABC Type 20 license (license #204620) on the premises was issued by the State of California Department of Alcoholic Beverage Control on September 11, 1987. The license was later grandfathered in under a Master Alcohol Conditional Use Permit, C-94-86. There were no specific conditions restricting the alcohol use at this location that were imposed under C-94-86. While the establishment has an existing Type 20 alcohol license, FMC Section 15-2706-C states that any existing establishment that requests to modify their alcohol license type must obtain a (new) Conditional Use Permit in compliance with the standards of the section, including applicable location restrictions. 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) 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 55.10. According to ABC, Census Tract 55.10 currently has two active off-sale alcohol licenses. Of the two active off-sale alcohol licenses there are two ABC Type 20 alcohol licenses (one of which is the applicant's) and no ABC Type 21 alcohol licenses. ABC authorizes four off-sale alcohol licenses per 1,075 people within Census Tract 55.10, which has an approximate population of 4,997. Per ABC, a total of four off-sale alcohol licenses are allowed in Census Tract 55.10. Therefore, there are two less off-sale alcohol licenses in Census Tract 55.10 than permitted for that census tract. If allowed to operate under the requested Type 21 alcohol license, the applicant proposes to withdraw the establishment's current Type 20 alcohol license which would not increase the number of existing ABC off-sale licenses within Census Tract No. 55.10. Should the proposed request be authorized, Census Tract 55.10 would have one ABC Type 20 alcohol license and one ABC Type 21 alcohol license. 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-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. The establishment is located approximately 118 feet from Nancy Fuller Children's University, an existing preschool/daycare 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. The establishment is located within 500 feet of two existing off-sale establishments (Rite Aid (Type 21) across the street and Chevron (Type 20) on the northeast corner of the intersection). For informational purposes the two aforementioned establishments are located within a different census tract (Census Tract 55.07) than the subject establishment (Census Tract 55.10). 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). The establishment is not located in 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. As mentioned in the ABC Regulations Section above, the establishment is not located in an area of high concentration nor would it result in an increase in the number of existing ABC off-sale licenses within the Census Tract. The establishment/proposed project is not in compliance with two of the aforementioned location restrictions pursuant to FMC Section 15-2706-E. It is located within 500 feet of a sensitive use (Nancy Fuller Children's University) and two existing off-sale alcoholic beverage establishments (Rite Aid and Chevron). Therefore, the proposed new alcohol CUP is prohibited per the FMC. Exception from Location Restrictions According to FMC Section 15-2706-E-5, a new establishment may be excepted from the location restrictions if the Review Authority determines any one of the following: a. The proposed use is not located within an area in which the Chief of Police has determined, based upon quantifiable information, that the proposed use a) would be detrimental to the public health, safety, or welfare of persons located in the area, or b) would increase the severity of existing law enforcement or public nuisance problems in the area. b. The proposed off-premises sale of alcoholic beverages is incidental and appurtenant to a larger retail use and provides for a more complete and convenient shopping experience. c. The proposed outlet for the off-premises sale of alcoholic beverages would act as a public convenience or necessity to an underserved portion of the community and/or enhance the vitality of an existing commercial area without presenting a significant adverse impact on public health or safety. The Director was unable to make any of these findings and therefore, denied the request to establish a Type 21 alcohol license on February 21, 2020. The Director has established a formal policy to allow for an exception to be made to allow alcohol sales at Specialty Grocery Stores if the store includes 8 key elements. This policy is attached as Exhibit K (Policy and Procedure No. C-005). The Johnny Quik Food Store does not contain these 8 elements and thus the Director could not make this exception based on this Policy. Fresno Police Department Review The Northwest Policing District reviewed the subject application and does not oppose the project provided the applicant agrees to the conditions listed in its memorandum dated December 24, 2019 and submits a complete security plan. Conditions include compliance with Fresno Municipal Code sections limiting noise and unlawful nuisance, compliance with State of California Alcoholic Beverage Control (ABC) rules and employee education, video camera surveillance, limitations on alcohol types and servings, limitations on on-site alcohol consumption and loitering, and completion of a security plan. Clovis Unified School District (CUSD) Review CUSD reviewed the subject application and had no comments or conditions. Other Agencies All comments received from the applicable agencies have been incorporated into the draft conditions of approval for Conditional Use Permit Application No. P19-05984. See Exhibit R for all written agency comments received. Conditions of Zoning Rezone Application No. R-8187, as approved by the Fresno City Council on May 16, 1989, reclassified the subject property from the C-1/UGM/cz zone district to the C-1/UGM/cz. Conditions of zoning tied to the property restrict permitted uses of/on the property to only those uses listed on Exhibit 'A' of Statement of Covenants Affecting Land Development for Rezoning Application No. 8187 (Fresno County Recorder's Office Document Number 8803304). See Exhibit N for Ordinance 88-43 and Statement of Covenants Affecting Land Development). The list of permitted uses included those permitted in the C-1 zone district; both by-right and with a conditional use permit. Upon further review, staff determined that alcohol sales (as a use) were not included on the restricted list of permitted uses and is therefore not allowed on the subject property. As previously mentioned in the Background section above, the State of California Department of Alcoholic Beverage Control issued the current ABC Type 20 license (license #204620) for the premises on September 11, 1987. Therefore, staff has determined that, following approval of Rezone Application No. R-8187 and the related conditions of zoning, the existing use of the property (convenience store w/ alcohol sales) is a legal non-conforming use which is subject to the provisions of FMC Section 15-404, Legal Non-Conforming Uses. Pursuant to FMC Section 15-404-A, any legal non-conforming use may be continued indefinitely. However, pursuant to FMC Section 15-404-B, a legal non-conforming use shall not be expanded unless a Conditional Use Permit is granted for such expansion. Prior to issuance of a Conditional Use Permit, it must be determined that at least one of the following three circumstances exists: 1) The resultant use and/or project design will reduce current adverse impacts on adjacent properties and/or on the general public; 2) The resultant use and/or project design will aid in the preservation of a historic resource; or 3) The expansion of the use or the enlargement of a structure housing a non-conforming use is necessary to comply with a requirement imposed by law for the operation of the particular use, including, but not limited to, regulations for disabled access or seismic retrofit. Staff is unable to determine that any of the aforementioned circumstances exist, and therefore does not support the requested expansion of use (upgrade from an existing Type 20 alcohol license to a Type 21 alcohol license). Public Notice and Input Council District Project Committee Review The Council District 6 Project Review Committee reviewed this project on January 7, 2020 and voted (3-2) to approve it with no additional recommendations. Concerns were brought up during meeting that this would be the only off-sale license for a convenience store north of Herndon. The Committee was concerned for the probability of a chain reaction of other convenience stores in the immediate area to follow suit in obtaining a Type 21 ABC license. Public Notice In accordance with Section 15-5305 of the FMC, the Planning and Development Department mailed a Notice of Intent to Take Action to surrounding property owners within 1,000 feet of the subject site on February 11, 2020, (Exhibit J). No comments or letters of concern have been received. 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 April 19, 2019 (Exhibit O). No comments have been received to date. LAND USE PLANS AND POLICIES The Fresno General Plan designates the subject property for Community Commercial planned land use and provides objectives to guide in the development of this project. The Community Commercial planned land use designation is intended for commercial development that primarily serves local needs such as convenience shopping and small offices. Many of the city's current commercial districts fall into this designation. Specific uses allowed include medium scale retail, office, civic and entertainment uses, supermarkets, drug stores and supporting uses 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. Woodward Park Community Plan Upon reviewing the goals and policies contained in the Woodward Park 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. 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. 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) are appropriate. These findings are attached as Exhibit P. If the Planning Commission decides to grant approval of the request to obtain 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 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. ENVIRONMENTAL FINDINGS No environmental findings are necessary to adopt a staff recommendation for denial for the project. However, should the Planning Commission make the required findings in accordance with FMC Section 15-5306 and grant approval of the request to upgrade to a Type 21 ABC license then adoption of a Section 15301/Class 1 Categorical Exemption, pursuant to the State of California Environmental Quality Act (CEQA) Guidelines, is considered appropriate in accordance with the following. The California Environmental Quality Act permits a public agency to determine whether a particular project is exempt from CEQA. A Section 15301/Class 1 exemption 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. The proposed special permit request is for an upgrade of an existing Type 20 off-sale alcohol license for an established general retail use. 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 CC (Commercial-Community) zone district by conditional use permit and is consistent with the planned Community Commercial 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 Categorical Exemption. None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to this project. Therefore, if the Planning Commission resolves to approve the proposed project, a determination of a Categorical Exemption under Section 15301/Class 1 of the CEQA Guidelines may be considered appropriate for the proposed project; and, the attached Categorical Exemption which was prepared for Environmental Assessment No. P19-05984 and dated May 20, 2020 (Exhibit Q) may be adopted. 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 Woodward Park Community 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. P19-05984, a request for an alcohol license upgrade, 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-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 Draft Conditions of Approval dated May 20, 2020 (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, Floor Plans) Exhibit J - Notice of Intent to Take Action & Noticing Map Exhibit K - Policy and Procedure No. C-005, Specialty Grocery Stores Exhibit L - P19-05984 CUP Denial Letter Exhibit M - Applicant Appeal Letter Exhibit N - Ordinance 88-43 and Statement of Covenants Affecting Land Development Exhibit O - Public Hearing Notice & Noticing Map Exhibit P - Fresno Municipal Code Findings Exhibit Q - Environmental Assessment Exhibit R - Draft Conditions of Approval