CITY OF VACAVILLE PLANNING COMMISSION Agenda Item No. G.1 STAFF REPORT August 18, 2015 ARROW FOOD AND GAS PUBLIC CONVENIENCE OR NECESSITY (PCN) APPEAL

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1 CITY OF VACAVILLE PLANNING COMMISSION Agenda Item No. G.1 STAFF REPORT August 18, 2015 Staff Contact: Albert Enault ( TITLE: REQUEST: RECOMMENDATION: ARROW FOOD AND GAS PUBLIC CONVENIENCE OR NECESSITY (PCN) APPEAL REVERSE THE COMMUNITY DEVELOPMENT DIRECTOR S DECISION TO DENY THE ARROW FOOD AND GAS PUBLIC CONVENIENCE OR NECESSITY (PCN) REQUEST AT 501 PEABODY ROAD. BY SIMPLE MOTION, THAT THE PLANNING COMMISSION APPROVE THE RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF VACAVILLE DENYING THE APPEAL AND AFFIRMING THE COMMUNITY DEVELOPMENT DIRECTOR S DECISION. APPLICATION INFORMATION APPLICATIONS: Public Convenience or Necessity Appeal FILE NO: APPELLANT AND PROPERTY OWNER: Karim Shawn Manji PROPERTY INFORMATION LOCATION: SITE AREA: ZONING: GENERAL PLAN DESIGNATION: CURRENT LAND USE: ADJACENT ZONING & USE: 501 Peabody Road.86 acres (approximately 37,700 sq. ft.) CN Neighborhood Commercial Neighborhood Commercial Gas Station and Convenience Store North: CN existing commercial businesses South: CN existing commercial businesses East: CG & RL-5 existing liquor store and singlefamily residential homes West: RH & CF existing multi-family apartments and Will C. Wood High School PROJECT SUMMARY: FLOOR AREA: HOURS OF OPERATION: NO. OF LICENSES IN CENSUS TRACT: 2,000 sq. ft. (approximately) Gas Station 24 hours Convenience Store 5:00 am-2:00 am (21 hours) Monday through Sunday Allowed: 2 liquor licenses

2 NUMBER OF OFFENSES: Existing: 3 liquor licenses 171 (average no. of offenses per district) 290 (total no. of offenses in reporting district) PROJECT DESCRIPTION On February 26, 2015, the Planning Division received an application for a City Determination of Public Convenience or Necessity (PCN) request to allow the sale of distilled spirits for off-site consumption (Type 21 license) at the Arrow Food and Gas convenience store located at 501 Peabody Road. Staff reviewed the application in accordance with the Code and determined that the proposed request could not meet the required findings identified in Section A (Findings Required for Approval) of the Land Use and Development Code. Therefore, the Community Development Director denied the PCN request. On June 16, 2015, the applicant filed an appeal of the Director s decision in accordance with the appeal process of the Code. PREVIOUS ACTIONS May 1971 The Vacaville Planning Commission approved a Conditional Use Permit request to establish a service station at 501 Peabody Road. September 1994 The Community Development Director approved a Minor Modification request to renovate and rehabilitate the Chevron Service Station at 501 Peabody Road. June 2005 The Vacaville Planning Commission approved a Conditional Use Permit request to remodel the existing service station at 501 Peabody Road. March 2006 The Vacaville City Council approved a Public Convenience or Necessity (PCN) request to sell alcoholic beverages (beer only) from the convenience store located at 501 Peabody Road. February 2015 Community Development Department received a PCN application with a request to sell distilled spirits from the convenience store located at 501 Peabody Road. April 2015 Staff sent the required noticing to the Vacaville City Council, Planning Commission, Police Chief, and property owners and tenants located within 600 ft. of the project site. June 2015 The Community Development Director denied the PCN request to sell distilled spirits for off-site consumption at the Arrow Food and Gas Convenience Store located at 501 Peabody Road. June 2015 The appellant filed an appeal of the Director s decision to deny the PCN request. 2

3 PROJECT ANALYSIS On February 26, 2015, the City received a Public Convenience or Necessity (PCN) request to sell distilled spirits from a gas station and convenience store located at 501 Peabody Road. In reviewing the application, Staff confirmed that the convenience store is located next to an existing liquor store that currently sells alcoholic beverages included beer, wine and distilled spirits. In addition, the convenience store is located across the street from sensitive land uses (Will C. Wood High School and residences). Furthermore, Staff determined that the request did not meet specific criteria in the Code or the required findings for approval. Therefore, the request could not be supported by Staff and was denied by the Community Development Director on June 11, Following the Director s decision, the applicant filed an appeal to the Planning Commission. The following analysis provides more information about the PCN application and the appeal. 1. General Plan Pursuant to Chapter (City Determination of Public Convenience or Necessity for Alcoholic Beverage Sales) of the Land Use and Development Code, PCN applications are required to be consistent with the goals, objectives and policies of the Vacaville General Plan. Staff reviewed the PCN application and determined that the request would not be consistent with the General Plan. Specifically, General Plan Policy 2.6-G7 requires new development to be compatible with the character and scale of adjoining uses, such as Will C. Wood High School and nearby residences. As proposed, the PCN request would increase the number of locations offering distilled spirits in the area, thereby increasing the density of alcohol retail establishments. According to a research study prepared by the Pacific Institute for Research and Evaluation, neighborhoods containing a high density of alcohol retail establishments are prone to experiencing a higher rate of violence. (Kathryn Stewart. How Alcohol Outlets Affect Neighborhood Violence, Pacific Institute for Research and Evaluation). Therefore, the PCN request would potentially increase the rate of violence in the area, thereby creating compatibility issues with adjoining sensitive uses. It should be noted that in 2006, the Vacaville City Council determined that alcoholic beverage sales (beer only) was consistent with the General Plan. This determination was made because the original approval included strict conditions that limited the location and placement of alcoholic beverages, limited the type of beverages to be sold (i.e. beer only, no flavored malt beverages), and provided procedures for addressing alcohol related incidences with a given period. As previously mentioned, the PCN request would add distilled spirits to existing beer inventory, which would not comply with the original consistency determination made by the City Council in As proposed, Staff determined that the PCN Request is inconsistent with the General Plan and the previous 2006 approval. 2. Public Convenience or Necessity (PCN) According to State Law ( California Business and Professions Code) and Chapter (City Determination of Public Convenience or Necessity for Alcoholic Beverage Sales) of the Land Use and Development Code, all alcoholic beverage sales resulting in or adding to an undue concentration of liquor licenses shall be subject to a determination that the public convenience or necessity will be served by the issuance of the liquor license. Authority to approve a PCN request in an area of undue concentration shall be in accordance with Section (Permitting Authority) of the Code. In this case, the Community Development Director is authorized to approve, approve with modifications, or deny a PCN application. 3

4 Background As previously mentioned, Staff received a new PCN application on February 26, As determined by the Department of Alcoholic Beverage Control (ABC), Staff confirmed that the project site is located in an area with excessive liquor licenses and criminal activity. Therefore, the PCN request was processed in accordance with the Code and required noticing was sent to property owners and occupants within 600 feet of the project site. Notice was also sent to the Planning Commission, City Council and Chief of Police. The City received 3 letters opposing the PCN request because of its proximity to nearby residences and Will C. Wood High School. In reviewing the application, Staff considered several criteria listed in Section (Criteria to be Considered in Determining Public Convenience or Necessity) of the Code. Such criteria include consideration of impacts to sensitive surrounding land uses (residences and schools), the number of existing licenses in the vicinity, crime-related problems in the area, enhancement of recreation and entertainment opportunities, and enhancement of economic viability of the area. As proposed, Staff determined that the project would not meet several criteria listed in the Code. Specifically, the project site is located near two sensitive land uses (existing residences and Will C. Wood High School), which would be impacted by additional alcohol related incidents at the project site. In addition, public convenience and necessity is already served by Fairmont Liquors, which is located directly behind the project site and sells beer, wine and distilled spirits (Exhibit A). Also, Staff considered the previous PCN request reviewed and approved by City Council in The original PCN request was opposed due to existing crime levels in the area and the site s proximity to Will C. Wood High School. However, City Council directed Staff to meet with the applicant and develop a list of conditions that could reduce potential issues. These conditions included restrictions on the location and placement of alcoholic beverages, limits on the type of beverages to be sold (i.e. beer only, no flavored malt beverages), and procedures for addressing alcohol related incidences with a given period. These conditions were intended to help the City be better equipped to deal with crime problems in the area. As proposed, the project would add distilled spirits to the convenience store, which would be inconsistent with the intent of the 2006 approval. Finally, Staff considered the required findings for approval as specified in Section (Findings Required for Approval) of the Code. Specifically, the Code requires the decisionmaker to adopt the following findings of fact: (1) the project will be consistent with the General Plan and Development Code; (2) the project will not be detrimental to the public health, safety, or welfare of the community; and (3) the project will serve the public convenience or necessity. As proposed, Staff determined that the project would not meet the required findings for approval. Therefore, the Director denied the PCN request to sell distilled spirits. Following the Director s decision, the applicant filed an appeal to the Planning Commission. Discussion of Appeal Section D(6) (Appeal Process) of the Code states: the discussion of the appeal shall be limited during the public hearing to only those items raised on the appeal application, except as follows: (1) that any new items are based on information that was not known or readily available at the time the appeal was filed; and (2) the items do not involve issues that could have been, but were not raised at the administrative hearing. A copy of the appeal has been included as Exhibit B, which contains the official appeal form and all supporting information submitted by the appellant. 4

5 Section D(2) (Appeal Process) of the Code states: the appeal shall state specifically why a determination or interpretation is not in accordance with the purposes of this Development Code, where there was an error or abuse of discretion, where the record includes inaccurate information, or how a decision is not supported by evidence in the record. The appellant has identified the following as reasons for the appeal: 1. Another establishment is not being added to the neighborhood, as indicated in the denial letter. The issuance of the license would not create a high density of alcohol retail establishments because we are not adding another establishment that sells alcohol; 2. Passing-through traffic is not likely to stop at Fairmont or Lucky s, and would rather choose to purchase such needs during their brief stop at the gas station. There is indeed much potential for economic viability more than what Fairmont or Lucky s can offer; and 3. The denial letter raises concern for the potential of unreasonable impact to land uses, but has provided nothing further than speculation, and that the findings for denial are based on mere speculation of unreasonable impacts, and should be reevaluated. Section D(5) (Appeal Process) of the Code identifies options available to the Planning Commission in considering an appeal. In making a determination on an appeal, the Planning Commission may affirm, modify or reverse the decision being appealed. Specific findings are required to be made if a decision is modified or reversed. ANALYSIS OF APPEAL As previously discussed, the appeal is based on three main points. Those points have been reviewed and analyzed by Staff in accordance with Section D(2) of the Code. The analysis is set forth below. 1. Appeal Point: Another establishment is not being added to the neighborhood, as indicated in the denial letter. The issuance of the license would not create a high density of alcohol retail establishments because we are not adding another establishment that sells alcohol. Determination: This claim is without merit for the following reasons: On March 14, 2006, the Vacaville City Council approved a PCN request to sell beer only at the Arrow Food and Gas Convenience Store. As proposed, the project would alter that previous approval by allowing the additional sales of distilled spirits from the convenience store. Currently, the ABC has identified two nearby locations that sell distilled spirits as part of regular inventory sales: Lucky s Supermarket and Fairmont Liquors. Approval of the proposed project would increase the number of retail establishments within the census tract that currently sell distilled spirits. Therefore, the appeal point is without merit because the project would increase the number of retail establishments selling distilled spirits in the neighborhood. 2. Appeal Point: Passing-through traffic is not likely to stop at Fairmont or Lucky s, and would rather choose to purchase such needs during their brief stop at the gas station. There is indeed much potential for economic viability more than what Fairmont or Lucky s can offer. 5

6 Determination: This claim is without merit for the following reasons: a. The PCN criterion requires Staff to consider whether the proposed sale of distilled spirits would enhance the economic viability of the area in which it is proposed. Staff determined that distilled spirits are already provided by existing businesses in the area, such as Fairmont Liquors located less than 200 ft. behind the convenience store, and Lucky s located farther down Peabody Road. Therefore, current economic viability for the area has already been enhanced by these existing businesses, and approval of the proposed license would result in an oversaturation of businesses offering the same product. b. The appellant claims that the proposed license would enhance the economic viability, but doesn t distinguish whether the enhancement provides benefits for the gas station or surrounding area. Furthermore, no economic feasibility study was submitted to confirm whether the additional sales of distilled spirits would benefit the surrounding businesses. While the addition of a Type 21 license may enhance the economic viability for the existing gas station, there is no evidence to support the claim that an additional license would benefit the surrounding area. 3. Appeal Point: The denial letter raises concern for the potential of unreasonable impacts to land uses, but has provided nothing further than speculation, and that the findings for denial are based on mere speculation of unreasonable impacts, and should be reevaluated. Determination: This claim is without merit for the following reasons: a. The appellant claims that the Director s decision was based on speculation. However, Staff s analysis included the review and consideration of other documentation such as a summary research study prepared by the Pacific Institute for Research and Evaluation. The research study determined that neighborhoods containing a high density of alcohol retail establishments are prone to experiencing a higher rate of violence. (Kathryn Stewart. How Alcohol Outlets Affect Neighborhood Violence, Pacific Institute for Research and Evaluation). Given the fact that the project site is located in an area currently oversaturated with alcohol retail establishments, Staff determined that approval of an additional liquor sales would result in the types of negative impacts identified in the research study. ENVIRONMENTAL REVIEW Categorical Exemption Pursuant to Section 15270(a) (Projects which are Disapproved) of the California Environmental Quality Act (CEQA), CEQA does not apply to projects which a public agency rejects or disapproves. No additional environmental review is required for this project. FISCAL IMPACT The Community Development Department s review and processing of the appeal application was funded by the appeal fee paid by the appellant. 6

7 CONCLUSION Planning staff has determined that the appellant has not provided evidence to show there was an error or abuse of discretion by the Director s denial of the PCN request. The appeal points have been reviewed and analyzed in accordance with the Code. Staff has determined that the appeal is without merit. Staff recommends that the appeal be denied and the Director s original decision to deny the PCN request be affirmed. RECOMMENDATION By simple motion, that the Planning Commission approve the Resolution of the Planning Commission of the City of Vacaville denying the appeal and affirming the Community Development Director s decision to deny the Public Convenience or Necessity request for Arrow Food and Gas Convenience Store located at 501 Peabody Road. ATTACHMENTS: Exhibit A Location Map Exhibit B June 16, 2015 Appeal Submittal Exhibit C July 8, 2011 Denial of PCN request 7

8 RESOLUTION NO RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF VACAVILLE DENYING THE APPEAL AND AFFIRMING THE COMMUNITY DEVELOPMENT DIRECTOR S DECISION TO DENY THE PUBLIC CONVENIENCE OR NECESSITY REQUEST TO SELL DISTILLED SPIRITS FOR OFF-SITE CONSUMPTION (TYPE 21 LICENSE) AT THE ARROW FOOD AND GAS CONVENIENCE STORE LOCATED AT 501 PEABODY ROAD THE PLANNING COMMISSION OF THE CITY OF VACAVILLE FINDS: A. On February 26, 2015, Karim Shawn Manji submitted to the Community Development Department a Public Convenience or Necessity ( PCN ) request to sell distilled spirits for off-site consumption (Type 21 license) at the Arrow Food and Gas convenience store located at 501 Peabody Road (APN ). B. The request was submitted because the applicant is seeking a liquor license from the State Alcoholic Beverage Control Board (ABC). The ABC has determined that the store is located in an area with an undue concentration of liquor licenses. Section of the Business and Professions Code requires the ABC to deny the application unless the local governing body approves a PCN. C. A public notice of the request was sent to the Vacaville City Council, Planning Commission, Police Chief, and property owners and tenants located within 600 feet of the project site. D. On June 11, 2015, the Community Development Director denied the PCN request to sell distilled spirits for off-site consumption at the Arrow Food and Gas Convenience Store located at 501 Peabody Road. E. On June 16, 2015, the appellant filed an appeal of the Community Development Director s decision to deny the PCN request. E. On August 18, 2015, the Planning Commission conducted a public hearing to consider the appeal of the Community Development Director s decision to deny the PCN request. F. The public hearing before the Planning Commission was duly noticed in accordance with applicable state law and the Vacaville Land Use and Development Code requirements. G. The Planning Commission received testimony and evidence from City staff, the appellant, and all interested persons regarding the proposed project. H. The record upon which the Planning Commission bases its decision includes, but is not limited to: (1) the written staff reports and presentations to the Planning Commission; (2) the evidence, facts, findings, and other determinations set forth in this resolution; (3) the City s General Plan and Municipal Code; (4) all correspondence received on this matter; (5) all documentary and oral evidence received at the public meetings and hearings on this matter; and (6) all other matters of common knowledge including, but not limited to, City, state, and federal laws, rules, regulations, and policies relating to this matter.

9 I. The project is statutorily exempt under Section 15270(a) of the California Environmental Quality Act (CEQA) Guidelines, which provides that CEQA does not apply to projects which a public agency rejects or disapproves. J. There are two retail establishments within the census tract that currently sell distilled spirits (Fairmont Liquors and Lucky s Supermarket). Therefore, the current economic viability for the area has already been enhanced by these existing businesses. The approval of another PCN in the area would result in an oversaturation of businesses offering the same product. K. The appellant has not provided any evidence in support of his claim that the requested PCN would enhance the economic viability of the surrounding area. L. A research study has determined that neighborhoods containing a high density of alcohol retail establishments are prone to experiencing a higher rate of violence. (Kathryn Stewart. How Alcohol Outlets Affect Neighborhood Violence, Pacific Institute for Research and Evaluation). The convenience store is located in a census tract that is currently oversaturated with alcohol retail establishments. Hence, the approval of additional liquor sales may result in the types of negative impacts identified in the research study. M. The applicant has not submitted any evidence indicating that the additional sales of distilled spirits would not unreasonably impact more sensitive surrounding land uses. N. Section A.1 of the Vacaville Land Use and Development Code requires a finding that approval of a PCN is consistent with the goals, objectives, and policies of the General Plan and of the Development Code. The required finding cannot be made because in 2006, the Vacaville City Council determined by Resolution , that the sale of beer (Type 20 license) would not unreasonably impact more sensitive surrounding uses, such as residences, schools, and similar uses, because the applicant had agreed to comply with certain conditions of approval that would mitigate the potential negative effects of beer sales at the subject site. That determination did not account for the additional impacts created by the sales of distilled spirits under a Type 21 license. As proposed, the additional sales of distilled spirits would increase the land use intensity of the project site, thereby creating potentially unreasonable impacts to adjoining sensitive land uses, such as residences and a public high school located across the street. Approval of the proposed request would be inconsistent with the original 2006 Council decision and General Plan Policy 2.6-G7, which provides that new development be compatible with the character and scale of existing and planned adjoining land uses, thereby resulting in compatibility issues with surrounding sensitive uses. For this reason, the Community Development Director could not find that the additional sales of distilled spirits would be consistent with General Plan Policy 2.6-G7 as required by Section A.1 of the Land Use and Development Code. O. Section A.2 of the Vacaville Land Use and Development Code requires a finding that approval of a PCN will not be detrimental to the public health, safety, or welfare of the community. The required finding cannot be met because the project site is located within a census tract that contains a higher than average crime rate. In 2014, the average number of criminal offenses for all reporting districts in the City was 171. During that same time, there were 290 criminal offenses within the census tract where the project site is located, which is higher than the City s average. Additionally, the project site is located in close proximity to residential uses and is across the street from a public high school. Studies have shown that a high density of liquor stores is linked to higher levels of crime and violence. While the proposal does not increase the number of stores selling alcoholic beverages, the increase of 2

10 alcoholic beverages available in this area could unreasonably impact these surrounding sensitive land uses. For this reason, the Community Development Director could not find that the sales of distilled spirits would not be detrimental to the public health, welfare and safety of the community as required by Section A.2 of the Vacaville Land Use and Development Code. P. Section A.3 of the Vacaville Land Use and Development Code requires that the public convenience or necessity will be served by approval of a PCN. The required finding cannot be made. The PCN request has been considered in accordance with Section of the Vacaville Municipal Code (Criteria to be Considered in Determining Public Convenience or Necessity) and Section (a)(3) of the Business and Professions Code. The State Legislature has found and declared that the public welfare and morals require that there be a limitation on the number of premises licensed for the off sale of distilled spirits (Business and Professions Code Section 23815). Where the numerical limitation has been met, the State may nonetheless issue a license if the premises are located in a crime reporting district that is below that provided in Section (a)(1) of the Business and Professions Code; the premises are located in an area that falls below the concentration level provided in Section (a)(3) of the Business and Professions Code; and the local governing body or its designated subordinate officer or body determines that the public convenience or necessity would be served by issuance of the license (Business and Professions Code Section (b)(2)). The State Department of Alcoholic Beverage Control has determined that the applicant s premises are situated in a census tract that allows a maximum of 2 licenses without local jurisdiction approval. The census tract currently includes 3 licenses, resulting in an undue concentration of licenses within the tract. The Community Development Director correctly found that the additional sales of distilled spirits would potentially impact sensitive surrounding land uses and would not enhance the economic viability or recreational opportunities in the area. The Director also correctly found that: (1) the additional sales of distilled spirits would add to an excessive concentration of licenses within the area and potentially increase crime-related offenses in the area; and (2) the public convenience or necessity is currently being served by 2 existing licensees in close proximity that already provide for the sales of distilled spirits: 521 Peabody Road (Fairmont Liquors) and 1979 Peabody Road (Lucky s Supermarket). For these reasons, the Community Development Director correctly found and determined that the public convenience or necessity would not be served by approval of the PCN request for the additional sales of distilled spirits at the subject site. NOW, THEREFORE, BE IT RESOLVED THAT: 1. The Planning Commission incorporates the findings set forth in Paragraphs A through P, above, as if restated herein in their entirely. 2. The appeal of the Community Development Director s denial of the PCN request for the Arrow Food and Gas convenience store is denied; and 3. The decision of the Community Development Director to deny the PCN request for the Arrow Food and Gas convenience store is affirmed. I HEREBY CERTIFY that the foregoing resolution was introduced and passed at a regular meeting of the Planning Commission of the City of Vacaville, held on the 18 th day of August, 2015 by the following vote: 3

11 AYES: NOES: ABSENT: ATTEST: Barton Brierley, AICP, Director of Community Development 4

12 Hume Way WILL C. WOOD HIGHSCHOOL VALLEY FOODS Marshall Road Peabody Road FAIRMONT LIQUORS PROJECT SITE LUCKY'S SUPERMARKET CHEVRON GAS STATION Alamo Drive LOCATION MAP - EXHIBIT A PROJECT SITE EXISTING LICENSES CENSUS TRACT WILL C. WOOD HIGH SCHOOL CITY OF VACAVILLE ARROW FOOD AND GAS STATION PUBLIC CONVENIENCE OR NECESSITY 501 PEABODY ROAD FILE NO DATE PLOTTED: 7/16/2015

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