North Oakland and South Berkeley are littered with liquor stores. The blighting effect of these car-oriented businesses is far and wide--litter, graffiti, loitering, boom cars, drug dealing, vandalism, and even murder. Neighbors living near liquor stores in North Oakland and South Berkeley have had
their quality of life greatly diminished by liquor stores and their patrons. Neighbors have reported drunks passed out on their lawns, bottles and cans strewn about, cars broken into and rifled through for change, and fear of alcohol-fueled disputes that end in violence, sometimes even in death.
South Berkeley and North Oakland residents have fought hard to severely limit and shut down several nuisance liquor stores. The
Shattuck Crime Prevention Council has worked diligently to address crime and nuisance activities that emanate from these outlets, such as Uptown Market on
Shattuck Avenue. There is little doubt that liquor stores and the ubiquitous mini-markets that sell alcohol are magnets for problems. Owners and operators have little incentive or ability to police those patrons who cause significant quality of life issues in the community because they are fearful of reprisals from violent drunks and gang members. Moreover, the owners make significant money selling single serving alcohol and fortified liquors to these patrons.
Given the problematic nature of liquor stores and mini-markets that sell alcohol, why on earth would the Oakland Planning Commission bend over backwards to approve a Major Conditional Use Permit and Variance to allow another liquor store in North Oakland--particularly when the City's own Planning and Legal Staff were set to recommend denial of the alcohol sales? Why? Because of race, gentrification and an outcry to retain black-owned businesses. Nothing in the administrative record, testimony from members of the community at the public hearing, analysis by City Planning and Legal Staff or discussion by the City Planning Commission provides a legal or factual basis to support findings for a Major Conditional Use Permit and Variance to allow another liquor store.
Nic Nak Liquors, which is located at 6400
Shattuck Avenue on the corner of
Shattuck and Alcatraz is owned by
Ashrious Pannell Sr. He has owned the property for the last forty years and has at times operated a convenience and liquor store at that location. In 2004, Mr.
Pannell of his own accord, shut down his convenience and liquor store. According to Mr.
Pannell, he did so because
he was ill. One fact is incontrovertible; Mr.
Pannell was completely shut down and out of the liquor business for at least five years. On April 28, 2004, the City Planning Department informed Mr.
Pannell (the property owner and business operator) by letter, that because he had shut down for more than 90 days his permit for liquor sales had been revoked and he would have to renew his permit. In essence, his Deemed Approved Status as a legal nonconforming use had lapsed. During the 10-day appeal period, Mr.
Pannell failed to appeal the Planning Department's revocation and during the five year period he was shut down failed to apply for a Major Conditional Use Permit and Variance to continue the liquor sales. All the while, Mr.
Pannell retained his liquor license, which is governed by State regulation and the Alcohol Beverage Control. Several times he attempted to sell his liquor license, but the buyers backed out. Most likely because Mr.
Pannell had lost his Deemed Approved Status as a legal nonconforming use.
In Spring of 2009, Mr.
Pannell, using a different business name, J0 Jo's, applied for an over the counter permit from the City of Oakland Planning Department to re-establish his liquor sales as if it were a Deemed Approved, legal nonconforming use. City Staff erroneously then issued Mr.
Pannell a permit and he re-opened and began selling liquor. When residents and neighbors, including the East Lorin Neighborhood Association and the
Shattuck Crime Prevention Council, realized that Mr.
Pannell was selling liquor, they contacted the City Planning Department and requested an evaluation of his permit. The City, under Zoning Administrator Scott Miller, determined the over the counter permit had been issued in error, rescinded the permit and requested that Mr.
Pannell cease liquor sales and apply for a Major Conditional Use Permit and a Variance since his Deemed Approved Status had lapsed and his business is located within 1,000 feet of an existing liquor store.
What is critical here is that the approved public policy of the City Council is to limit the establishment of new liquor stores, prevent the over saturation of liquor stores in certain areas that already have an abundance of liquor outlets, and prevent liquor stores from clustering.
The City states that:
The prevalence of retail liquor sales is an important public policy issue in Oakland. The City Council has determined that there is an over-concentration of off-sale liquor facilities and that t
here has been a great deal of documented nuisance and other public safety problems due to the prevalence of retail liquor outlets and the conditions under which some of these stores operate. Therefore, the Council has decided to invoke its police power to control the manner, extent, type and other operational characteristics of this type of activity through the Conditional Use Permit procedure in Planning Code Section 17.134. All commercial zones, require that a use permit be approved prior to allowing retail liquor sales. This use permit process provides for public notification and hearing, assessment of extent and nature of liquor sales activity in relation to other retail sales and the conditions and requirements within which the sales will occur including type of liquor sold, extent of floor area devoted to liquor sales, hours of operation, security and anti-loitering provisions, etc.The requirements of a Variance are specifically related to topography and physical constraints and are somewhat difficult to meet. This link to the City of Oakland website provides detailed information to applicants as to what findings an applicant must meet for the City to approve a Variance.
http://www.oaklandnet.com/government/ceda/revised/planningzoning/ZoningSection/Forms/Variance%20findings%20(07-13-04).pdfThe City website states that: A
Variance is permission to depart from the development standards, or setbacks, of the zoning district. Variances provide the discretion and flexibility to resolve difficulties or hardships that may be inappropriate where special or extraordinary circumstances occur on the property. These circumstances do not mean economic hardship; rather, they refer to topographic or physical attributes of the site that do not allow for the development standards of the Zoning District to be applied.According to the City, Variances in circumstances like the
Nic Nak Liquor Store are granted only when all four of the following findings can be made:
Unique Circumstance that is Specific to the PropertyThe strict compliance with the specified regulation would result in practical difficulty or unnecessary hardship inconsistent with the purposes of the zoning regulations, due to unique physical or topographic circumstances or conditions of design; or as an alternative in the case of a minor variance, that such strict compliance would preclude an effective design solution improving livability, operational efficiency or appearance.Minimizes the Differences Between Properties in the Same Zoning DistrictThat strict compliance with the regulations would deprive the applicant of privileges enjoyed by owners of similarly zoned property; or as an alternative in the case of a minor variance, that such strict compliance would preclude an effective design solution fulfilling the basic intent of the applicable regulation.No Adverse Impacts to the NeighborhoodThat the Variance, if granted, will not adversely affect the character, livability, or appropriate development of abutting properties of the surrounding area, and will not be detrimental to the public welfare or contrary to adopted plans or development policy.No Special Privilege That the Variance will not constitute a grant of special privilege inconsistent with limitations imposed on similarly zoned properties or inconsistent with the purposes of the zoning regulations.The City Planning Staff in their original staff report dated August 5, 2009, recommended denial of the liquor sales, but approval of the convenience market.
http://www.oaklandnet.com/government/ceda/revised/planningzoning/Commission/August-5-2009/Item4/6400shattuck1.pdfThe staff report noted that:
The proposed Variance to the 1,000 foot separation standard in a neighborhood could set a precedent for other alcohol sales applications in the area...Allowing alcohol sales uses to cluster closer than the 1,000 foot radius could be detrimental to the vitality of an emerging commercial and mixed-node....Staff recommends denial of the M
ajor Variance and Conditional Use Permit for Alcoholic Beverage Sales. The findings required by the Oakland Planning Code are not fulfilled in this case. Granting the request would cause an adverse precedent. The liquor store lost its legal status 5 years ago and community demand has been well-served by other Alcoholic Beverage Sales locations. A neighboring market already provides beer and wine services to the immediate Shattuck neighborhood. Several other liquor stores provide services near the edge of the 1,000 foot radius from this store; and this additional venue for liquor is not necessary. The potential for adverse secondary effects, such as loitering and littering, would likely increase with another operator in the future.This appeared to an open and shut case for denial. However, the public hearing turned the tide. Mr.
Pannell, who is an elderly African-American, brought a legion of supporters to the Planning Commission, almost all, with a few exceptions were African-American, including family members, his minister, members of his church, the Black Chamber of Commerce, and members of the controversial
Uhuru Group. Most, but not all, of his supporters are not residents of the East Lorin Neighborhood. Those opposing his application to sell liquor were almost all white and included members of the East Lorin Neighborhood Association, the
Shattuck Crime Prevention Council and other neighborhood business owners.
In introducing the matter, the City Planner, David
Valeska, noted to the Planning Commissioners that they were likely to hear much testimony that was irrelevant to the issue at hand and that they needed to focus on the legal requirements for meeting a Major Conditional Use Permit and a Variance.
Those opposed to another liquor store testified about the over saturation of liquor stores in North Oakland and South
Berkeley identifying approximately 19 off-sale liquor outlets within walking distance or a short drive from the proposed
Nic Nak Liquors. The Chair of the
Shattuck Crime Prevention Council testified about the extensive and sustained efforts the community has
taken to make Beat 11x in North Oakland safer and how detrimental another liquor store would be. The Chair of the East Lorin Neighborhood Association noted that the only issue before the Planning Commission was whether the proposed alcohol sales met the requirements of a Variance. He also noted that the neighborhood and community was changing and that additional liquor stores were not what the community wanted to see. He also pointed out that there had been a significant community effort to curtail nuisance liquor stores in North Oakland and South Berkeley.
On the other hand, Mr.
Pannell and his legion of supporters did not provide any factual evidence or any supporting basis as to why his property and business should be granted a Variance from the requirements of the City Ordinances for liquor sales. What he and his supporters did testify to was Mr.
Pannell's life story as a war veteran, as someone who put himself through college on the GI Bill, as an Alameda County Sheriff, as a responsible business owner, and as a "pillar of the community". He also testified that he and his family had been the single largest African-American property and business owner in North Oakland.
Then, Mr.
Pannell and his entourage testified that he was a victim of City bureaucracy. That the City was somehow out to get him since they revoked his permit to sell liquor. He suggested that the opposition, which was largely white, was racist. He and his entourage testified that he was a victim of gentrification that was not only pushing out African-Americans from North Oakland, but actively working to shut down African-American businesses. He lamented at all of the convenience stores now owned by those of Middle Eastern descent and the demise of black-owned businesses. At one point, in an attempt to discredit the City Planner assigned to the case, Mr.
Pannell and his entourage even claimed that the City Planner, Mr.
Valeska, had been disrespectful to him suggesting that an elderly man should not be running such a business. In an odd moment, this accusation elicited a spirited rebuttal from Mr.
Valeska denying the claims and a rebuke from the Planning Commission to the
Pannell supporters not to make this personal. Mr.
Pannell also threatened to sue the City if he was not granted his liquor sales. When queried about the acceptability of certain conditions such as not selling fortified liquors, single servings of alcohol or high octane beer, a feisty Mr.
Pannell demanded that unless all existing liquor stores in Oakland be held to the same exact conditions it would be unfair to impose them upon his upstanding business.
At one point Mr.
Pannell even claimed that he never got the City's letter revoking his Deemed Approved Status, then upon further questioning claimed that he did not understand the notice. One has to wonder how Mr.
Pannell, a self proclaimed "pillar of the community", a former Alameda County Sheriff's Deputy, and an educated businessman could not understand a simple notice from the City. Either he got the notice or he didn't.
In short, Mr.
Pannell and his entourage painted him alternately as a "pillar of the community" and as a victim of the City bureaucracy, racism and gentrification. What is strange is that We Fight Blight, despite being very active in the North Oakland community for the past nine years, had never heard of Mr.
Pannell until he re-opened his liquor store in the Spring of 2009 and has never encountered Mr.
Pannell at any community functions.
Several Planning Commissioners, led by the now departed Anne E.
Mudge, who is an attorney at Cox, Castle, and Nicholson with 20 years of land use law under her belt
http://www.coxcastle.com/lawyers/bio.cfm?attorneyID=180, correctly noted that it is the adopted public policy of the City of Oakland to limit and control liquor stores. Then in a complete turnaround that was both shocking and surprising, Commissioner
Mudge posited that the findings for a Variance could be made based on the proposition that Mr.
Pannell was a "pillar of the community" and the longevity of his business. What was so strange about her position was that the requirements of a Variance do not speak to the issue of a person's character or the longevity of their business. Variances within the context of land use law and the Oakland Planning Regulations are limited to unique physical or topographic circumstances or conditions of design.
Commissioner Mudge, nor any of the other
Commissioners, were able to provide any other basis for meeting the findings of a Variance. In a 4-1 straw vote, the Planning
Commissioners sent the Planning Staff back to prepare findings and conditions for approval.
Mr.
Pannell and his entourage played the community and the City Planning Commission. It is very
disappointing that someone, such as Anne E.
Mudge, with such a
distinguished career as a land use attorney could not make the right decision. She could not see her way through the emotion and through the irrelevant arguments advanced by Mr.
Pannell, failed to do her duty as a Planning
Commissioner and treat Mr.
Pannell as any other applicant by denying his application for a Variance and actually led the charge to approve his application despite the significant problems of not being able to make the appropriate findings to approve a Variance.
The City Planning Staff were left with the unenviable position of trying to fashion an approval for a project they were
recommending be denied. Obviously, the City Planning Staff has struggled
considerably to rewrite the staff
recommendation and make the appropriate findings as there is little to no factual
underpinnings to support approval. What the City Planning Commission asked the City Planning Staff to do has no precedent in Oakland or in land use law to which we are aware. They are moving into
significantly unchartered territory.
http://www.oaklandnet.com/government/ceda/revised/planningzoning/Commission/September-16-09/Item1/6400shattuckreport.pdfThe staff findings for approval states that:
Historical relevance of the 6400 Shattuck Avenue property constitutes a unique physical circumstance. The facility and activity cannot be moved while retaining these historical associations, including neighborhood, social and leadership activities. Without a variance, the business may be forced to close, resulting in unecessary hardship inconsistent with the purpose of the zoning regulations. Rather than protecting the neighborhood, denying the variance could adversely change the historical relationships in this part of the neighborhood. In addition, the physical aspects of the property are unique: the building is nearly the only commercial building in the adjacent blocks whi
ch is set back this much from the commercial street. The positions of other buildings blocks visibility of the building, perhaps reducing its commercial viability and making it more difficult to sustain sufficient commerce on convenience sales alone; alcoholic beverage sales may be needed to offset this condition of design in the existing commercial structure. What is so laughable about this finding is that City Policy explicitly notes that:
A Variance is permission to depart from the development standards, or setbacks, of the zoning district. Variances provide the discretion and flexibility to resolve difficulties or hardships that may be inappropriate where special or extraordinary circumstances occur on the property. These circumstances do not mean economic hardship; rather, they refer to topographic or physical attributes of the site that do not allow for the development standards of the Zoning District to be applied. What Planning Staff notes is that the business may be forced to close if it does not have liquor sales--This would be an economic hardship, not one of topography or physical attributes. The site is flat and is located at the corner of a major city intersection. Moreover, the Planning Staff's claim that the business may close if it does not have liquor sales is an unsubstantiated assertion not supported by the Administrative Record since Mr. Pannell and his supporters have not provided any financial data or business pro-forma to prove this. Morever, if the business failed, which is unlikely since Mr. Pannell has owned the property outright for many years and his operational and personnel costs appear to be relatively low as this is a family-owned business, this would be an economic hardship, not one of topography or physical attributes.
The notion that historical relevance constitutes a unique physical circumstance is absurd and turns land use law on its head. The fact that some type of store has been in operation at 6400 Shattuck for some 40 years and that the property owner is a self proclaimed "pillar of the community" does not constitute a special or extraordinary circumstance related to topography or physical attributes. There are any number of nonconforming legal land uses that have existed for some time in Oakland with a proprietor that could claim to be a "pillar of the community". That denying the Variance could somehow cause historic relationships to be severed is preposterous and unsubstantiated by the Administrative Record. Mr. Pannell himself does not even live in the community, although some of his family does. He reportedly has a home in Clear Lake California and a residence in the Trestle Glen neighborhood of Oakland. The majority of his supporters are not from the East Lorin Neighborhood. His business has been shut down for five years. Since that time, a wave of new residents have moved to the East Lorin Neighborhood and to North Oakland, the majority of whom do not even know Mr. Pannell and have never even set foot into his shuttered business.
The idea that because the store is set back from the sidewalk along Shattuck is somehow a special or extraordinary circumstance related to topography or physical attributes that somehow makes this property less viable and, therefore, requires alcohol sales to make it profitable is not factually supported by the Adminstrative Record. Remember that this store is located at the cross-roads of Shattuck Avenue and Alcatraz Avenue. Both Shattuck and Alcatraz Avenue are major transportat
ion corridors that bring significant traffic into and out of North Oakland and Berkeley and to Highway 24 and 580. There are also AC Transit bus stops on three of the four corners. It is also a major pedestrian corridor for those walking to BART and a major bicycle thoroughfare. There is simply no way not to see the Nic Nak Liquor Store from this major intersection. It is highly visible from three of the four corners of this intersection. The notion that it is hidden or blocked by other structures is simply not true given the major intersection and the pole signage and the signage on the building. The setback to which the Planning Staff refers provides off-street parking. Most retailers and shop owners would view a corner lot with off-street parking as a competitive advantage, not a topographic or physical disadvantage. Moreover, the setback is not related to topography or a physical attribute of the site, but a choice by the property owner to develop his site with the setback for parking. Had Mr. Pannell chosen to do so, he could have developed the property similar to other historic building structures by pulling the building to the corner. This was a site design choice, not a result of some special or extraordinary topographic or physical constraint. The lot is of a standard depth, is flat and is located on a corner. Nothing unusual.
Remember all four of the findings must be made to approve a Variance. The Planning Staff cannot even reasonably justify the first finding for Nic Nak because there is no evidence or factual basis to support findings of approval. There is no extraordinary or unusual circumstances related to topography or the physical characteristics of the site.
According to the Urban Strategies Council,
there are 325 stores in the City of Oakland that sell liquor. With a population of 411,775 residents,that means that there is one liquor store for every 1,267 people. North Oakland does not need more liquor stores. Oakland does not need more liquor stores. Despite the claims of some Planning Commissioners to the contrary, approval of this Major Conditional Use Permit and Variance means that it will set a precedent not only for North Oakland but the entire City.
Why does the City needlessly encourage such poor decisions that cry out for lawsuits? This case is ripe not only for appeal to the City Council, but may also be subject to litigation in the courts. The staff findings for approval are at best weak, and have no basis in the Adminstrative Record. You can thank former Planning Commissoner, Anne E. Mudge, for this morass. What a departing gift!
Although this matter has been highly controversial both in the community and at the hearing for denial of the liquor sales, the findings for approval of the Conditional Use Permit and Variance is scheduled as a consent calendar item for the September 16, 2009 Planning Commission Meeting. Sadly, this effectively eliminates the public's ability to weigh in on the precedent setting nature of this approval and the incredibly weak staff findings.
Our recent blog about Mr. Pannell's efforts to get a Major Conditional Use Permit and Major Variance to sell liquor at 6400 Shattuck seems to have generated quite a few of comments. More than any other We Fight Blight Blog, this post, like Mr. Pannell's proposal, has garnered quite a bite of controversy. There are now 50 comments on the original post.
