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10-19-2010 - Appeal of Planning Commission Denial ofAdministrat - Appeal hearing report (2).docCity of West Covina Memorandum A G E N D A ITEM NO. E-1 DATE: October 19, 2010 TO: City Manager and City Council FROM: Jeff Anderson, Acting Planning Director Planning Department SUBJECT: APPEAL OF PLANNING COMMISSION DENIAL OF ADMINISTRATIVE USE PERMIT NO. 10-23 CATEGORICAL EXEMPTION 1131 S. Glendora Avenue APPLICANT/APPELANT: Walgreens (Daniel J. Kramer, Haas Najarian, LLP/Seth Merewitz, Best Best & Krieger, LLP) RECOMMENDATION: The Planning Commission recommends that the City Council adopt the following resolution: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WEST COVINA, CALIFORNIA, UPHOLDING THE DECISION OF THE PLANNING COMMISSION AND DENYING ADMINISTRATIVE USE PERMIT NO. 10-23 BACKGROUND: Staff initially recommended approval of Administrative Use Permit No. 10-23 to the Planning Commission as outlined in the discussion section of the staff report. In the mid 1990s, the State of California adopted the current standards, which are enforced by the Department of Alcoholic Beverage Control (ABC), requiring a letter of public convenience and necessity to allow the service of alcoholic beverages within an area of undue concentration. In response to this requirement, the City enacted an ordinance in 2004 requiring that any request for the off-sale service of alcoholic beverages within an area of undue concentration receive approval of an administrative use permit, pursuant to Section 26-685.103 of the Municipal Code. The off-sale service of alcoholic beverages is allowed by right in areas that do not have undue concentration, as determined by the ABC. The California Business and Professions Code defines undue concentration for use by the ABC when reviewing applications for liquor licenses. According to Section 23958.4 of the Business and Professions Code, an undue concentration of off-sale outlets exists when either of the following is found to exist: a. The ratio of off-sale retail licenses to population in the census tract in which the premises are located exceeds the ratio of off-sale retail licenses to population in the county; or b. The applicant premises are located within a high crime area according to police department statistics. The number of licenses allowed within a census tract varies depending on the type of license, however, off-sale beer and wine restricts the number to one license for every 1,600 residents in a census tract. State law is established to allow a jurisdiction to evaluate the number of off-sale alcohol licenses in an area and determine if there is a correlation between the number of alcohol licenses and crime. A high crime area is defined as an applicant premises located in a crime-reporting district that has a 20 percent greater number of reported crimes than the average number of reported crimes as determined from all crime reporting districts within the jurisdiction of the local law enforcement agency. Because these districts are compared with other districts in the City, every city will have a certain number of districts that have a higher crime rate than the community average. Generally, these districts will be commercial districts where more types of crime occur. Section 23958.4 9-(b) of the Business and Professions Code states that, “Notwithstanding Section 23958, the department may issue a license as follows”: When an undue concentration [as defined by State law] is found to exist, ABC is required to deny a license unless the City determines that the public convenience or necessity would be served by the issuance. Therefore, when an ABC license is requested and is located in an area of undue concentration, ABC allows the City to determine if it is in the best interest of the City to approve the license. ABC allows individual cities to establish criteria or rationale in determining the “best interest” of the City. (ABC refers to this decision as “the public convenience and necessity”.) It should be noted that there are standards for undue concentration for both the on-sale and off-sale service of alcohol. (On-sale service is alcohol that must be consumed on the premises (such as a restaurant) and off-sale services is alcohol that is to be consumed off of the premises (such as a retail store)). The Municipal Code (Section 26-685.107) authorizes staff to make the finding of public convenience and necessity as part of the approval of administrative use permits and conditional use permits. When such a case is presented to the Planning Commission, staff’s goal is to provide them with full information to evaluate the issue and make an informed decision. ABC defers to the City to make a finding of public convenience and necessity for off-sale uses. In the case of on-sale uses (restaurants), ABC accepts the approval of a City (usually a conditional use permit) as an indication of the agreement with the public convenience and necessity. Furthermore, in cases where the City declines to make a decision on the public convenience and necessity, ABC has the ability to make that determination 90 days after the submittal of an ABC application by an applicant. DISCUSSION: The applicant is requesting the approval of an administrative use permit to allow the off-sale service of beer and wine in conjunction with the operation of an existing Walgreens drug store located at the northwest corner of Glendora Avenue and Merced Avenue. The Planning Director may approve this type of request, pursuant to Section 26-270 of the West Covina Municipal Code, unless a request for a public hearing is received in the 10-day public review period. In this instance, staff received one request for a public hearing from the owner of Stone Liquor located at 1211 S. Glendora Avenue. Subsequently, the Planning Director elected to transfer the applicant’s request to the Planning Commission. In the staff report, staff recommended that the Planning Commission adopt a resolution approving the subject administrative use permit. The applicant is also required to apply to the ABC for a Type 20 liquor license to allow the off-sale service of beer and wine in conjunction with the sale of other goods and services. Consumption of alcohol is not permitted on the premises with a Type 20 liquor license. The subject Walgreens drug store is located within an area where undue concentration exists, as determined by the ABC. The subject census tract (Census Tract No. 4067) allows for the issuance of six off-sale licenses without being defined as an area of undue concentration. Currently, the subject census tract has eight off-sale licenses (See Attachment 9), therefore the area is defined as an area of undue concentration. The crime-reporting district in which the subject Walgreens drug store is located is considered a high crime area, according to the State law (California Business and Professions Code) as discussed above. In this case, the reporting district (No. 63) had a total of 36 Part I crimes, while the City average is 22. Because the district has crime statistics 20 percent greater than the average, the area is defined as an area of undue concentration. For more specific information, refer to the Planning Commission staff report dated September 14, 2010. The Planning Director has the ability to approve or deny an ABC application when an administrative use permit (AUP) is required. Staff generally approves requests for off-sale ABC licenses administratively. Since the code was changed to require the approval of an AUP, staff has approved five of the six submitted (one was denied by City Council due to concerns about crime in the area) (Attachment 10). In this instance, the Planning Director considered the fact that the proposed use is located within the Neighborhood-Commercial (N-C) zone and will occur in conjunction with the existing Walgreens drug store that provides goods and services to the residents of West Covina, as well as neighboring cities. Staff recommended approval of the proposal to the Planning Commission since the off-sale of beer and wine would be an incidental portion of its overall merchandise and would provide additional convenience to its customers. Furthermore, the site has a well-lit parking area that complies with the City’s parking requirements. The Police Department has indicated that they have no issues or concerns with the request. To allow further evaluation, attachments include a map of the Police-Reporting District, and a map of the Census Tract (Attachments 7 & 8). PLANNING COMMISSION REVIEW AND RECOMMENDATION: The Planning Commission held a public hearing regarding this matter on September 14, 2010. At the conclusion of the hearing, the Commission voted 3-2 (Carrico, Holtz and Stewart in favor, Redholtz and Sotelo opposed) to deny the applicant’s request. The Commission expressed concern over the nine existing liquor licenses for the off-sale service of alcoholic beverages within the subject census tract. Additionally, the majority expressed the opinion that there were other locations in the area where alcohol could be purchased. FISCAL IMPACT: The fiscal impact of the proposal is minimal. _______________________________ ____________________________________ Prepared by: Amy Davis Reviewed/Approved by: Jeff Anderson, AICP Planning Assistant Acting Planning Director Attachments: Attachment 1 – Draft Resolution for Denial Attachment 2 – Draft Resolution for Approval Attachment 3 – Planning Commission Staff Report, September 14, 2010 Attachment 4 – Planning Commission Denial Resolution No. 10-5385 Attachment 5 – Planning Commission Minutes, September 14, 2010 Attachment 6 – Appeal Letter from Applicant Attachment 7 – Map of Police-Reporting District No. 63 Attachment 8 – Map of Census Tract No. 4067 Attachment 9 – List of ABC licenses in Census Tract No. 4067 Attachment 10 – List of off-sale licenses processed since AUP requirement was adopted