Honorable Mayor and Members of the City Council. Submitted by: Wendy Cosin, Interim Director, Planning and Development

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Office of the City Manager ACTION CALENDAR December 6, 2011 To: From: Honorable Mayor and Members of the City Council Christine Daniel, Interim City Manager Submitted by: Wendy Cosin, Interim

1 Office of the City Manager ACTION CALENDAR December 6, 2011 To: From: Honorable Mayor and Members of the City Council Christine Daniel, Interim City Manager Submitted by: Wendy Cosin, Interim Director, Planning and Development Subject: ZAB Appeal: 2801 Adeline Street RECOMMENDATION 1) Conduct a public hearing and, upon conclusion, either: a. Adopt a Resolution granting the appeal of Berry Cisco Gardner, Jr., overturning the Zoning Adjustment Board s (ZAB) decision to approve Use Permit No to allow retail sales of beer and wine for off-site consumption at an existing retail pharmacy, and denying the Use Permit, OR b. Continue the hearing to consider approval of the Use Permit following revisions to BMC Section 23E B.2.c to specify additional circumstances under which a Use Permit for alcohol sales or service may be approved where the applicant has prior violations. AND 2) Provide direction to the Planning Commission to revise Section 23E B.2.c as discussed above. FISCAL IMPACTS OF RECOMMENDATION None CURRENT SITUATION AND ITS EFFECTS On September 20, 2011, the Council set this matter for a public hearing. As discussed in the September 20, 2011 Council report, the ZAB s approval was inconsistent with the Zoning Ordinance due to alcohol-related violations by the applicant. In order to approve the application, Section 23E B.2.c of the Zoning Ordinance must be revised by specifying additional circumstances under which a Use Permit for alcohol sales or service may be approved where the applicant has prior violations. At the September 20, 2011 meeting, one of the Council members expressed concerns about the application and asked staff to provide information regarding any correlation 2180 Milvia Street, Berkeley, CA Tel: (510) TDD: (510) Fax: (510) manager@cityofberkeley.info Website:

2 ZAB Appeal: 2801 Adeline Street ACTION CALENDAR December 6, 2011 between increased alcohol sales and alcohol-related problems in a neighborhood. Another Councilmember asked staff to determine if Walgreen s has had any further alcohol-related violations since 2009, when it began its nationwide rollout of alcohol sales. As discussed in further detail below, there is a positive correlation between the density of alcohol outlets and adverse public health and safety indicators, and Walgreen s has had several violations of the State alcohol licensing regulations since it again began selling alcohol in California. Consistent with the September 20, 2011 staff report, staff is providing two options for Council action. The Council could grant the appeal (based on findings of detriment as asserted by the appellant), overturn the ZAB decision to approve the project, and deny the application. Alternatively, if the Council would like to consider approving the application, staff recommends that the public hearing be continued until the Zoning Ordinance is revised as described above. Staff also recommends that the Council provide direction to the Planning Commission to revise Section 23E B.2.c because in recent years, the lack of flexibility in this section has been problematic as discussed further below. BACKGROUND Amended Finding. In order to approve any alcohol sales or service within 1,000 feet of the same type of sales or service, except for beer and wine incidental to food service, Section 23E B.2.c requires a finding that the applicant has not operated a licensed establishment that has been the subject of verified complaints or violations regarding alcohol, public safety or nuisance statutes or regulations. In the last several years, this language has proven to be problematic because, for cases other than for restaurants, the finding does not allow any flexibility for even a single violation, even in cases where the violation was relatively minor or in the distant past, or where the applicant has improved operations to avoid further problems. It may be appropriate to allow for consideration of the time frame, number, and location of violations, and whether there is evidence of an improved track record. Therefore, staff recommends that the Council provide direction to the Planning Commission to revise Section 23E B.2.c by specifying additional circumstances under which a Use Permit for alcohol sales or service may be approved where the applicant has prior violations, and also by clarifying who may be considered the applicant for the purposes of this finding. If the Council adopts a Zoning Ordinance amendment, it could then potentially approve the Use Permit for the present applicant at the continued hearing, pursuant to a modified finding. Alcohol-Related Data. In response to the Councilmember s request for information on the correlation between increased alcohol sales and alcohol-related problems, staff has provided the attached report from Dr. Friedner Wittman of CLEW Associates, a Berkeley-based research firm specializing in alcohol policy. The report cites data which demonstrate that a higher density of alcohol sales outlets is correlated to an increase in alcohol-related criminal activity. The report also states that even though an individual alcohol outlet may contribute relatively little to a city s overall crime, the approval of

3 ZAB Appeal: 2801 Adeline Street ACTION CALENDAR December 6, 2011 each additional outlet contributes to a cumulative increase in alcohol-related crime and other problems. Staff has also checked the State Department of Alcoholic Beverage Control s License Query System (LQS) to determine if Walgreen s has had any further alcohol-related violations in California since According to the LQS, Walgreen s has had three confirmed violations for sales to minors since 2009, for which ABC has issued 15-day suspensions and fines of $750 to $1, The LQS also shows at least five pending violations since 2009, which are awaiting further investigation and/or appeal. 1 The LQS summaries for these violations are attached. 2 ALTERNATIVE ACTIONS CONSIDERED The Council could affirm the ZAB s decision and reject the appeal. As discussed in the September 20, 2011 Council report, if the Council affirms the ZAB s decision, staff recommends that Condition 8 be modified to specify that issuance of the Use Permit is contingent upon ABC s acceptance of the additional conditions regarding alcohol sales. CONTACT PERSONS Debra Sanderson, Land Use Planning Manager, Planning & Development Department, (510) Aaron Sage, AICP, Senior Planner, Planning & Development Department, (510) Attachments: 1: Resolution Exhibit A Findings for Denial 2: CLEW Associates report on effects of increased alcohol sales 3: ABC licenses with violations since : Public Hearing Notice 1 In addition to these five, the attached LQS summary for license # in Sanger, CA shows Reg. Number under Current Disciplinary Action but does not provide the actual number. 2 Confirmed violations are listed on the LQS summaries under Disciplinary History and pending violations are listed under Current Disciplinary Action.

4 RESOLUTION NO. ##,###-N.S. GRANTING THE APPEAL OF BERRY CISCO GARDNER, JR., AND OVERTURNING THE ZONING ADJUSTMENTS BOARD S DECISION, THEREBY DENYING USE PERMIT NO TO ALLOW RETAIL SALES OF BEER AND WINE FOR OFF-SITE CONSUMPTION AT AN EXISTING RETAIL PHARMACY LOCATED AT 2801 ADELINE STREET IN THE SOUTH AREA COMMERCIAL (C-SA) DISTRICT WHEREAS, on April 14, 2010, Walgreen Co. ( applicant ) filed an application for a Use Permit to allow retail sales of beer and wine for off-site consumption at an existing retail pharmacy at 2801 Adeline Street ( project ); and WHEREAS, on October 8, 2010, staff deemed the application complete; and WHEREAS, on February 3 and 14, 2011, staff mailed and posted Notices of Public Hearing for the project in accordance with BMC Section 23B ; and WHEREAS, on March 10 and April 14, 2011, the Zoning Adjustments Board (ZAB) held a public hearing in accordance with BMC Section 23B , and on April 14, 2011, the ZAB approved the project subject to findings and conditions; and WHEREAS, the ZAB s approval was inconsistent with Section 23E B.2.c of the Zoning Ordinance, because the applicant has operated [multiple] licensed establishment[s] that [have] been the subject of verified complaints or violations regarding alcohol, public safety or nuisance statutes or regulations, and the ZAB s reliance on the time elapsed since these violations occurred, and the fact that none of the violations occurred in Berkeley, was not adequate to make the required finding; and WHEREAS, on April 26, 2011, staff issued the notice of the ZAB decision; and WHEREAS, on May 9, 2011, Berry Cisco Gardner, Jr. filed an appeal of the ZAB decision with the City Clerk; and WHEREAS, on September 20, 2011, the Council considered the record of the proceedings before the ZAB, and the staff report and correspondence presented to the Council, and, in the opinion of this Council, the facts stated in, or ascertainable from this information, warranted further hearing; and WHEREAS, on November 14, 2011, staff issued the notice of public hearing for the Council hearing; and WHEREAS, on December 6, 2011, the Council conducted a public hearing at which it further considered the record of the proceedings before the ZAB, and the staff reports and correspondence presented to the Council, and public testimony offered at the hearing.

5 NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Council hereby grants the appeal of Berry Cisco Gardner, Jr., and overturns the decision of the ZAB to grant Use Permit No , and denies the Use Permit based on the findings in Exhibit A. Exhibits A: Findings for Denial of the Use Permit

33 Attachment 4 NOTICE OF PUBLIC HEARING BERKELEY CITY COUNCIL CITY COUNCIL CHAMBERS, 2134 MARTIN LUTHER KING JR. WAY ZAB APPEAL: 2801 ADELINE STREET (WALGREEN S) Notice is hereby given by the City Council of the City of Berkeley that on TUESDAY, DECEMBER 6, 2011 at 7:00 P.M. a public hearing will be conducted to consider the Zoning Adjustments Board s approval of Use Permit # to allow retail sales of beer and wine for off-site consumption at an existing retail pharmacy. For further information, please contact Aaron Sage, Land Use Planning Division, A copy of the agenda material for this hearing will be available on the City s website at as of November 22, Written comments should be mailed or delivered directly to the City Clerk, 2180 Milvia Street, Berkeley, CA 94704, in order to ensure delivery to all Councilmembers and inclusion in the agenda packet. Comments received no later than Monday, November 21, 2011, will be included in the Council agenda packets. Comments received thereafter will be submitted to Council as supplemental communications at the meeting. If the communication includes maps or photos or any other material not reproducible on a copy machine, fifteen copies should be provided to the City Clerk. For further information, call Deanna Despain, City Clerk, FAX: (510) TDD: (510) Deanna Despain, CMC, City Clerk Mailed to Residents and Interested Parties November 14, 2011 NOTICE CONCERNING YOUR LEGAL RIGHTS: If you object to a decision by the City Council to approve or deny (Code Civ. Proc (b)) or approve (Gov. Code 65009(c)(5) an appeal, the following requirements and restrictions apply: 1) Pursuant to Code of Civil Procedure Section , no lawsuit challenging a City decision to deny or approve a Zoning Adjustments Board decision may be filed more than 90 days after the date the Notice of Decision of the action of the City Council is mailed. Any lawsuit not filed within that 90-day period will be barred. 2) In any lawsuit that may be filed against a City Council decision to approve or deny a Zoning Adjustments Board decision, the issues and evidence will be limited to those raised by you or someone else, orally or in writing, at a public hearing or prior to the close of the last public hearing on the project. If you challenge the above in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City of Berkley at, or prior to, the public hearing. Background information concerning this proposal will be available at the City Clerk Department and posted on the City of Berkeley webpage at least 10 days prior to the public hearing.

Office of the Mayor Mayor Tom Bates ACTION CALENDAR March 5, 2013

Office of the Mayor Mayor Tom Bates ACTION CALENDAR March 5, 2013 To: From: Honorable members of the City Council Mayor Tom Bates Councilmember Jesse Arreguin Councilmember Laurie Capitelli Councilmember