PREPARED BY: GRIFFEN DEMPSEY DATE OF MEETING: 01/21/2025
SUBJECT:
TITLE
PUBLIC HEARING AND RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN PABLO CONSIDERING AN APPEAL OF THE PLANNING COMMISSION’S DENIAL OF A CONDITIONAL USE PERMIT TO ADD OFF-SALE GENERAL ALCOHOL SALES, INCLUDING DISTILLED SPIRITS, TO AN EXISTING BEER AND WINE LICENSE FOR A LEGAL NONCONFORMING CONVENIENCE MARKET AND REVOCATION OF AN EXISTING CONDITIONAL USE PERMIT NO. 1212, LOCATED AT 14701 SAN PABLO AVENUE, APN: 413-310-017
CEQA: Categorically exempt under the California Environmental Quality Act, Section 15301, Existing Facilities, Class 1.
Label
RECOMMENDATION
Recommendation
Conduct the Public Hearing; Adopt Resolution.
Body
COMPLIANCE STATEMENTS
FY 2023-25 City Council Priority Workplan Compliance Statement
-Focus on Economic Development and Diversification is an adopted Major Policy Goal under FY 2023-25 City Council Priority Workplan, effective May 1, 2023, as amended.
REQUESTED ACTION
A request to appeal the decision of the Planning Commission to effectively deny a Conditional Use Permit (through a vote of 2 ayes and 2 nays) to add off-sale general alcohol sales, including distilled spirits, to an existing beer and wine license for a legal nonconforming convenience market known as Bonfare Market located at 14701 San Pablo Avenue, APN: 413-310-017, and revocation of existing Conditional Use Permit No.1212. Off-sale alcohol sales refers to the sale of beer, wine, and distilled spirits for consumption off the premises per the California Alcohol Beverage Control (ABC).
Per San Pablo Zoning Code Section 17.16.080, an action of an approving authority may be appealed by any interested person within 10 days of the decision being issued. The final review authority for a Conditional Use Permit is the City Council, and thus an appeal of the Planning Commission decision will be heard at City Council. The applicant filed an appeal and paid the applicable fee on December 4, 2024, and an appeal hearing has been scheduled for the next available City Council meeting on January 21, 2025.
The appeal is considered a de novo (new) hearing. In taking action on the appeal, the City Council, as the appeal authority, shall state the basis for its action. The City Council may act to confirm, modify, or reverse the action of the Planning Commission, in whole or part, or add or amend such conditions as it deems necessary. The action of the City Council is final on the date of the decision and may not be further appealed.
ENVIRONMENTAL DETERMINATION
The project is categorically exempt under the California Environmental Quality Act, Section 15301, Existing Facilities, Class 1. This Class applies to the operation, permitting, and licensing of existing private structures involving negligible or no expansion of use. There are no proposed changes to the existing commercial building where the convenience market is currently located and the proposed CUP allowing for liquor sales would constitute a negligible expansion of the existing use.
BACKGROUND
The applicant is requesting an appeal to reverse the action of the Planning Commission and thereby allow the approval of a Conditional Use Permit to add liquor sales in addition to beer and wine sales at an existing convenience market known as Bonfare Market. The market is located at 14701 San Pablo Avenue, in the High-Density Residential Land Use Designation within the San Pablo Avenue Specific Plan. Surrounding uses include D.C. Auto repair shop, J&M Liquor, apartments and single-family residences. The convenience market building was constructed in 1981 following the approval of a Use Permit No.1212 in July 1980, which allowed the convenience market use at this location. The convenience market has remained operational since that time. In 2011, the City re-zoned the property to SP-2, High Density Residential, which prohibits the convenience market use and alcohol sales. Since Bonfare Market existed at the time the zoning designation was changed, it became a legal nonconforming use.
In 1990, a Type 20- Beer & Wine alcohol license from the California Alcoholic Beverage Control Department (ABC) was obtained by Grace Hwang, a previous owner of the convenience market. This license has remained active through the operation of the convenience market and was transferred to the current franchise owners in August 2024. In 2002, Bonfare Markets submitted an application to upgrade the existing beer and wine license (Type 20) to add distilled spirits sales (Type 21) for off-sale consumption. The request was ultimately denied by the Planning Commission at their April 2nd, 2002 meeting (Attachment D). Concerns expressed at the time included potential for crime related to alcohol sales and competition with other alcohol-serving uses.
City of San Pablo business license records show Bonfare Markets Inc. has maintained an active business license at this location since at least 2007. Bonfare Markets Inc. is a franchise with over 38 locations in the San Francisco Bay Area and Northern California. The market recently entered new ownership, with the new franchisees for this location having taken over in May 2024. The new ownership was awarded an ABC license lottery for the opportunity to apply for off-sale general alcohol sales in late 2024. The applicant applied for approval of a Conditional Use Permit to add off-sale general alcohol sales, including distilled spirits, to an existing beer and wine license at a legal nonconforming convenience market. A public hearing was held and this request was considered by the San Pablo Planning Commission on November 24, 2024.
PLANNING COMMISSION DECISION
The Planning Commission held a public hearing on this item on November 24, 2024. The public hearing was opened, and the property owner publicly agreed to the Conditions of Approval. There was one member of the audience who spoke in favor of the project. The public hearing was then closed.
At the November 24, 2024 hearing of the Planning Commission, the project was effectively denied through no action. The Planning Commission voted 2 in favor of approving the Conditional Use Permit and 2 against, with one commissioner absent. The Commissioners voting against the item expressed concerns about the community health impacts of allowing full liquor sales at this location, as well as the early hours of operation of the business, which opens at 6 a.m. The Commissioners voting for the item expressed support for expansion of a local business to help ensure its success. A motion to continue the hearing also failed with a 2-2 vote. The applicant filed an appeal and paid the applicable fee on December 4, 2024, and an appeal hearing was scheduled for the next available City Council meeting on January 21, 2025.
PROJECT DESCRIPTION
The market is located in a commercial building on the northwest corner of the intersection of San Pablo Avenue and Lake Street. The site is 12,727 square feet in area and the existing building foot-print covers 3,000 square feet. The site has a 16-vehicle parking lot fronting San Pablo Avenue Two driveways provide access to the property, with one located on San Pablo Avenue and the other on Lake Street.
Bonfare Market has an active Type 20 off-sale Beer and Wine ABC license (See Attachment E for the existing license and ABC License Types). The business owner desires to add distilled spirits and to upgrade the existing ABC license from a Type 20 to a Type 21, which is an off-sale general alcohol license that incudes distilled spirits for retail establishments. Bonfare Market is a legal nonconforming use which can only be “enlarged or increased” with a Conditional Use Permit in accordance with the requirements of San Pablo Municipal Code (SPMC) section 17.08.030. In order to apply to ABC for a Type 21 license, the applicant must comply with the SPMC and first obtain a Conditional Use Permit to add liquor sales to its existing alcoholic beverage sales.
Bonfare Market is 3,000-square feet and currently sells beer, wine, snacks, tobacco, non-alcoholic beverages, clothing, grocery items, general merchandise, and more. The applicant’s proposal includes modifications to an existing eight-foot section of shelves behind the counter, currently containing tobacco products, to convert into an area for liquor sales (See Attachment F for site photos and floor plans). No other changes are proposed to the interior or exterior of the building (i.e., there will be no expansion of any structure). The hours of operation and alcohol sales would be consistent with the current alcohol license for the premises, which allows sales from 6 a.m. to midnight, seven days a week. The market currently has five employees, aged 23 to 60 years old, all of whom have filled out the Alcohol Beverage Control Affidavit required by California Alcoholic Beverage Control. No changes to staffing levels are proposed.
The applicants are requesting to upgrade their liquor license in order to provide greater access to goods for people living in the neighborhood. The applicant has submitted a letter stating that although there is another active liquor store, J & M liquors, located across the street, there is no crosswalk in this section of San Pablo Avenue. The applicant states that crossing San Pablo Avenue at this location can be dangerous and providing distilled spirits at Bonfare Market would provide greater convenience for nearby residents while increasing business for the market. The applicant also states that their business has had “a clean track record” since taking new ownership in May 2024, and have increased their grocery offerings while cleaning up the store and property.
Staff have ascertained that a Determination of Public Convenience or Necessity is not required for this site. The census tract in which the store is located does not contain any other active liquor licenses, so there is no evidence of an overconcentration of off-sale licenses. Additionally, data provided by the Police Department shows that this location is not considered a high crime area. Between November 13, 2023 and November 14, 2024, there were 59 incidents that occurred at this address; of these, 43 were officer-initiated incidents unrelated to the business, such as traffic stops and security checks. A total of three arrests have occurred on the property, including one arrest for public intoxication and two arrests based on outstanding warrants for individuals. Police noted that the new owners have installed new landscaping and repainted the building at the request of Code Enforcement, and since the new ownership has taken over, patrol officers no longer observe loitering and public alcohol consumption at the site and there have been no new tobacco violations.
If the City Council chooses to reverse the Planning Commission denial of the CUP and approve the request, the attached Draft Resolution contains conditions of approval regarding safety, hours of operation and code compliance. In this case, staff also recommends revocation of the existing CUP No.1212 (Attachment G) so that the new CUP replaces it and there is no confusion over applicable conditions.
GENERAL PLAN CONFORMANCE
The General Plan designation of the applicable parcel is High Density Residential. This designation is intended for multifamily apartments and townhomes two to four stories in height located along major roads. The following General Plan policies apply to this request:
Guiding Policy LU-G-7: Retain and enhance existing commercial, industrial, educational and entertainment land use areas to strengthen San Pablo’s economic base.
Guiding Policy LU-G-11: Recognize the importance of the mixed-use areas along San Pablo Avenue, San Pablo Dam Road, 23rd Street, and Rumrill Boulevard to the vitality and quality of life in San Pablo.
Implementing Policy LU-I-21: Ensure that noise, traffic, and other potential conflicts that may arise in a mix of commercial and residential uses are mitigated through good site planning, building design, and/or appropriate operational measures.
As an added merchandise offering for an existing established convenience store use along a major mixed-use arterial, the proposed request would be responsive to these policies by providing goods for sale that will be convenient to nearby residents and the community as a whole. The applicant has stated that expanding the alcohol offerings will allow the business to increase its revenue and better meet customer demands.
The recently adopted Community Health and Environmental Justice Element of the San Pablo General Plan addresses a number of health and justice strategies, including those pertaining to crime reduction and perceptions of safety. The following policies relate to this request:
Guiding Policy CHEJ-G-13: Use the built environment and city planning tools to deter crime, increase respect for neighbors and property, and improve the public perception of safety throughout the community.
Implementing Policy CHEJ-I-48: Enforce property maintenance and environmental design regulations for businesses, especially “corner stores,” including regulations for alcohol and tobacco advertisements. Assist store owners in identifying low-cost solutions to maintenance issues and provide financial assistance to qualifying businesses.
Implementing Policy CHEJ-I-49: Continue to enforce provisions in the municipal code to manage alcoholic beverage sales locations and hold store owners accountable for litter, graffiti, assault, prostitution, or other public nuisance connected to their stores.
The Police Department has recommended a number of conditions in order to minimize impacts on the neighborhood and number of police calls associated with the use. The Police Department has also noted the applicant’s successful efforts in cleaning up the property and complying with security measures.
SAN PABLO AVE SPECIFIC PLAN
The site falls within the San Pablo Avenue Specific Plan area, which was adopted in September of 2011 to provide a vision, goals, and implementation measures for creating a vibrant, accessible, and sustainable mixed-use corridor. The Specific Plan aims to revitalize areas along San Pablo Avenue with higher-intensity development to promote stronger economic activity, street life, and transit ridership, among other goals. On a broader scale, Bay Area Metro (Association of Bay Area Governments (ABAG) and the Metropolitan Transportation Commission (MTC) is also focusing on San Pablo Avenue as one of three regional corridors to implement their Plan Bay Area Sustainable Communities Strategy (see <https://www.planbayarea.org/> ). The corridor is designated as a Priority Development Area.
The following guiding (G) and implementing (I) policies of the San Pablo Avenue Specific Plan are relevant to the proposed project:
Land Use Policies:
2-G-3
Promote pedestrian- and transit-friendly development that enhances the public realm.
2-I-14
Encourage both day and nighttime uses within all major activity centers along the corridor, particularly within the Entertainment Overlay District
Urban Design and Building Development Standards:
4-G-3
Encourage a mix of uses that is compatible with and caters to the needs of the community and region
As with the General Plan land use policies, the added offering of distilled spirits at the subject location will potentially invite a larger customer base to support the existing local market and strengthen its economic base.
ZONING CONFORMANCE
The subject site is a standalone commercial building that was constructed as a convenience store in 1980 and has remained as that use since its construction, according to business license and permit records. No exterior or interior changes are proposed to the building, other than a change to the merchandise offered in one area behind the counter.
The subject property is located within the SP-2, High Density Residential District, which does not allow the convenience market use or the sale of alcoholic beverages. However, as explained in the Background section, the existing use predates the zoning classification and it is therefore considered to be a legally non-conforming use. In order to “enlarge or increase” such a nonconforming use, Chapter 17.08 of the SPMC requires an applicant to obtain a Conditional Use Permit. Adding the sale of distilled spirits would be considered an increase of the existing nonconforming use.
Further, section 17.62.020 of the Zoning Ordinance governs alcoholic beverage sales, and includes restrictions on locations for selling or serving alcoholic beverages as follows:
17.62.020 Alcoholic beverage sales.
A. Purpose. The purpose of this section is to establish site planning, development, and/or operating standards for alcoholic beverage sales businesses. It is the city’s intent, in establishing these standards, to mitigate the potential adverse impacts of this use and activities on adjacent and surrounding land uses.
B. Alcoholic Beverage. For the purposes of this section, “alcoholic beverage” means alcohol, spirits, liquor, wine, beer, or any liquid or solid containing alcohol, spirits, wine, or beer, that contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances.
C. Restrictions on Location. No alcoholic beverage sales use shall be located closer than one thousand feet to any other alcoholic beverage sales use, school, licensed day care center, public park or playground, church, senior citizen facility, or licensed alcohol or drug treatment facility except as follows:
1. If the activity is in conjunction with a full-service restaurant; or
2. In establishments with twenty-five or more full-time equivalent employees and a total gross floor area twenty thousand square feet or more.
The proposed project is not consistent with the restrictions on location set forth in 17.62.020.C, which requires alcoholic beverage sales uses to be 1,000 feet or more apart unless the use meets one of the two exceptions. The subject location does not fit the description of a full-service restaurant and does not have 25 or more full-time equivalent employees and a total gross floor area of 20,000 square feet or more, and thus would be required to be at least 1,000 feet from other alcohol-serving establishments. However, another long-standing alcohol-serving establishment (J&M Liquors) is located across San Pablo Avenue, approximately 200 feet away.
The Bonfare Market has been selling alcoholic beverages at this location since 1990 and is considered a legal nonconforming use. It may continue to sell alcoholic beverages at this location despite its proximity to J&M Liquors, and it may add distilled spirits if it obtains the requested Conditional Use Permit. However, the presence of San Pablo Avenue creates an effective barrier between Bonfare Market and J&M Liquors that meets the intent of the section 17.16.020 even though those requirements are not applicable in this instance. There is no crosswalk across San Pablo Avenue at or near the two uses, and it is a major thoroughfare. Each use thus effectively serves its respective side of the street.
CONDITIONAL USE PERMIT APPEAL
Section 17.08.030 of the San Pablo Zoning Code regulates nonconforming uses. Section 17.08.030(A) governs continuance and expansion of nonconforming uses:
Continuance and Expansion. A nonconforming use may be continued but the use shall not be enlarged or increased, nor be extended to occupy a greater area than that occupied by such use at the time the use became nonconforming, unless it is allowed by use permit or a use permit is applied for and meets the findings in conformance with the zone and is approved by the deciding body.
The current alcoholic beverage sales use is legally non-conforming. The addition of liquor and distilled spirits to the sales plan and ABC license for such a non-conforming use thus requires the approval of a CUP. Should the requested CUP be approved through City Council reversal of the Planning Commission denial, then the applicant’s request to upgrade its ABC license would be considered by ABC.
The CUP process is set forth in Section 17.20.040 of the Zoning Code, and identifies the following necessary findings for granting of a permit:
That the establishment, maintenance, or operation of the use of the building applied for will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, morals, comfort, and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the city.
According to the applicant, granting the CUP would help the business better meet local demand while increasing their revenue and supporting the owners’ reinvestment in the property. The property in which the market is located is in an area that contains a mix of commercial and residential uses along a busy arterial corridor. Offering general alcohol sales at this location thus would not be disruptive to other nearby uses nor would it be detrimental or injurious to property improvements in the neighborhood. The market would not be expanded in size and would continue to be buffered from adjacent multi-family uses by its parking lot and perimeter fencing. An auto-repair use is located across Lake Street from the site, and additional multi-family uses to the east are buffered by San Pablo Avenue. The proposal would not be detrimental or injurious to the general welfare of the city as it would introduce a minor amount of expanded alcohol sales in an area where these types of beverages are already accessible, providing additional revenue for an existing business without meaningfully altering the overall access to distilled spirits in the community.
The appeal is considered a de novo (new) hearing. In taking action on the appeal, the City Council shall state the basis for its action. The City Council may act to confirm, modify, or reverse the action of the Planning Commission, in whole or part, or add or amend such conditions as it deems necessary. The action of the City Council is final on the date of the decision and may not be further appealed.
Findings to support the reversal of the Planning Commission denial to grant a Conditional Use Permit in this case include the following:
A. The granting of the requested CUP amendment will not materially adversely affect the health or safety of persons residing or working in the neighborhood of the property and will not, under the circumstances of the particular case, be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood.
B. The proposed request would help to strengthen an existing long-standing convenience market that is well suited to the site and which serves nearby commercial and residential properties.
C. The proposed expansion of alcohol use would be located within a limited area of currently displayed tobacco and sundries merchandise shelving located securely behind the cashier.
D. Data provided by the San Pablo Police Department show that the market has not generated significant calls for service in the past year since it has been under new ownership.
E. The proposed request would be responsive to General Plan policies calling for the enhancement of existing commercial areas.
F. The project complies with the development standards of the Zoning Ordinance, as it pertains to this particular legally nonconforming use.
Public notice of the hearing has been given by mail to the applicants, local affected agencies, and all property owners within 300 feet of the subject property and has been published in the West County Times (West Contra Costa edition of East Bay Times), in accordance with the requirements of Government Code Section 65905.
SUGGESTED CONDITIONS OF APPROVAL
The Police Department has provided suggested conditions of approval for the request for on-site general alcohol sales, as well as additional general security suggestions. These have been incorporated into the attached Resolution should the City Council decide to reverse the Planning Commission decision and allow the expanded alcohol sales. Security-related conditions of approval recommended by the Police Department are included below:
1. The hours of operation shall be Monday to Sunday 6:00 am to 12:00 am including hours of alcoholic beverage sales. Any subsequent request to increase the hours of the market and/or alcohol sales would require an amendment to this Use Permit from the City of San Pablo, and in no event shall the hours of operation extend past midnight.
2. The business shall have and maintain an Odin/Milestone compatible security camera system which is front facing (entry and parking lot) and accessible to the Police Department.
3. Upon closing, the management or its representatives shall not allow patrons to loiter in or about the business and shall not furnish or sell alcohol to anyone on the premises.
4. The business shall affix “NO LOITERING” signs to the building that are easily visible by the public. It is the store management or its representatives’ responsibility to ensure that loitering does not occur on the premises.
5. The applicant shall be subject to an annual review of calls for service from the Police Department, during which the Police Department may request voluntary modifications to the security plan or other measures to reduce the number of calls for service.
6. The applicant, in the operation of the business, shall not sell alcohol to a minor; sell alcohol without valid identification verifying age; or serve or sell alcohol outside of the permitted hours. If two such violations occur in a 12-month period, the Use Permit may be revoked.
CONCLUSION
Staff recommends reversing the Planning Commission’s denial of the request; granting the requested Conditional Use Permit for an upgrade to an existing liquor license to allow off-sale alcoholic beverage sales, including distilled spirits at this location, along with conditions of approval; and revoking the existing Conditional Use Permit No.1212. As the final approval authority, the City Council may add or amend such conditions as it deems necessary. Any future changes to the approved Conditional Use Permit, including hours of operation or a change in license type, must first be submitted to the City of San Pablo for review.
FISCAL IMPACT
Planning application fees were collected and City resources spent for the review of the project. Approval of the conditional use permit would likely result in slightly higher sales and use tax revenues for the City due to the additional sale of alcoholic beverages.
ATTACHMENTS
Att A - Draft Resolution 2025-###, Reversing Planning Commission Denial, Granting Conditional Use Permit, and Revoking Existing Conditional Use Permit No.1212.
Att B - Resolution PC24-16, Planning Commission Decision (Effective Denial)
Att C - Site Location
Att D - Use Permit request to allow the sale of distilled spirits - April 2, 2002 (Denied)
Att E - Existing Liquor License and ABC License types and their basic privileges
Att F - Application, Project Explanation, Business Plan, Floor Plan and Photographs
Att G - Existing CUP No.1212 (1980)
Att H - Proof of Publication from West County Times