Sunday, February 7, 2010

Nic Nak Liquors Coming to City Council March 16

The City Council Rules Committee has set March 16, 2010 for the Nic Nak appeal. This appeal is critical in determining whether the City Council will enforce its existing regulations on limiting the proliferation of liquor stores in Oakland by denying a conditional use permit and variance for alcohol beverage sales at 6400 Shattuck Avenue or whether it succumbs to the continued pressure and threats from the property owner who believes it unfair to apply the existing regulations to his new alcohol beverage sales. The lengthy time to agendize the appeal was, in part, related to the detailed 37 page appeal from nearby residents who oppose the Liquor Store. The Planning Staff are required to address each and every issue raised in the appeal when the matter comes before the City Council.

In fall of 2009, the City Planning Commission granted a conditional use permit and a major variance to Ashrious Pannell to sell liquor at the Nic Nak using a unique and unprecedented rationale that "historical relevance" is equivalent to a unique physical constraint. This rationale, which has never before been used in the history of Oakland to approve any variance, has no known precedence in modern planning theory.

Although the proponents of the liquor store, which include Ashrious Pannell, the Black Chamber of Commerce, the controversial Uhuru Group, and local business activist Geoffrey Peete, have raised numerous issues in support of the liquor store including charges of neighborhood gentrification and racism, and unfairness by the City Planning Staff, none have been able to articulate a rational policy or legislative basis as to why liquor sales should be approved under the existing City regulations. In fact, the City Planning Staff and City Attorney originally advised the Planning Commission the City could not make the legally required findings to approve liquor sales at 6400 Shattuck Avenue before the Planning Commission directed staff to make an 180 degree turn and prepare findings for approval. It is easy to understand why the Planning Staff have had such a hard time with this project, as adopted City policy is fairly clear on limiting new liquor sales.

The City of Oakland enacted a deemed approved status to allow pre-existing, but non-conforming liquor stores to continue to operate. The deemed approved requirements specify the owner/operator must not have a lapse in continuous alcohol beverage sales for greater than 90 days. The Nic Nak Liquor Store, by all accounts, was shut down for at least five years by the Pannells. Mr. Pannell ceased selling liquor and even surrendered his State Alcohol Beverage license. When this occured, the City of Oakland properly terminated the Nic Nak's deemed approved status as a non-conforming use due to the lapse in alcohol beverage sales for greater than 90 days. Although given an opportunity to appeal the decision to terminate the Nic Nak's deemed approved status, Mr. Pannell failed to appeal the termination. He was directed by the City Planning Staff to file a major conditional use permit and a major variance should he wish to re-open the Nic Nak and sell liquor.

Re-opening the Nic Nak and selling alcohol beverage sales at 6400 Shattuck Avenue requires a major conditional use permit because sales of alcohol beverages at the site is considered to be new alcohol beverage sales under the Oakland Planning Code. A major variance is required because Nic Nak is located within 1000 feet of an existing liquor store. The Oakland Planning Code prohibits alcohol beverage sales from opening up within 1000 feet of an existing alcohol beverage sales outlet.

Under the Oakland Planning Code, a major variance is restricted to unusual or extraordinary physical constraints that prevent an applicant from meeting the intended purpose of the zoning/planning code. According to the City, economic hardship is not a basis for a variance. In this case, Mr. Pannell's property does not exhibit any unusual physical constraints--it is a flat, corner lot, with a standard lot size as compared to nearby commercial properties. There is nothing unusual or unique in terms of its physical layout as it relates to other similarly zoned properties.

In approving the alcohol beverage sales, the Planning Commission capitulated to pressures from the property owner, including threats of a lawsuit, and made an unprecedented finding to approve the liquor sales--"historical relevance is equivalent to a physical constraint". Because Mr. Panell was a self-proclaimed pillar of the community and allegedly had long-term ties to the community by operating the Nic Nak Liquor Store, the Planning Commission felt it would be unfair to deny him new liquor sales because it would be difficult for him to severe ties to historical customers and relocate his sales to a site that did conform to the existing planning regulations.

According to Scott Miller, Oakland Zoning Manager, this type of rationale has never before been used in the City of Oakland to approve a variance and he is not aware of this theory, which apparently was borrowed from the National Historic Preservation Act, being used in other jurisdictions or having support in case law. Neighbors opposing the liquor sales disputed Mr. Pannell's historic ties to the community noting that he does not live in North Oakland, had not operated the Nic Nak for at least five years thereby severing ties to his customer base, and has not participated in community organizations such as Neighborhood Watch, the Shattuck Crime Prevention Council, the East Lorin Neighborhood Association or any other ad-hoc neighborhood group.

The pupose of Oakland's deemed approved ordinance for alcohol beverage sales is to ensure they do not create a nuisance and importantly to eliminate non-conforming liquor sales or bring them into conformance with the existing regulations. The City Council adopted certain regulations governing the siting of new alcohol beverage sales to prevent over-concentration of liquor stores. This was largely due to the recognized adverse effects of liquor stores on Oakland communities. North Oakland/South Berkeley already has 20 existing alcohol beverage sales within 1 mile of Nic Nak. Several City Councilmembers have already gone through difficult struggles within their own districts to either shut down or severely curtail nuisance liquor sales. Given the existing adopted public policy of the City Council on liquor stores, and the struggles of several City Councilmembers with existing liquor sales, one has to wonder why they would even consider upholding the City Planning Commission's faulty decision to approve liquor sales at 6400 Shattuck Avenue. Doing so would severely undermine the City's progress to date in getting a handle on this public health crisis.

The Planning Commission's approval of the Nic Nak was replete with unsubstantiated assertions and conclusions that were not supported by the administrative record and failed to take into account the entirety of public comments including the submission of a plethora of peer-reviewed studies conducted locally, nationally and internationally that show an over-concentration of liquor sales lead to higher crime rates, and an increase in public health and nuisance issues for surrounding neighborhoods. Perhaps the City Council will be more thorough in their analysis and consideration of the Nic Nak than the Planning Commission and will look to reaffirm their existing policies to limit new liquor stores, rather than succumbing to threats from a local business owner that is out of sync with the community.


Anonymous said...

There was also threats of a lawsuit from the opposing side... so write that on your blog!!!

Fight Blight said...

Thank you Anonymous,

You are absolutely correct, several members of the Community who are opposed to the liquor sales at 6400 Shattuck have stated they may sue should the City approve liquor sales contrary to the regulatory requirements of the Oakland Planning Code. Importantly, Mr. Pannell made an explicit threat of a lawsuit as part of his presentation to the Planning Commission. Members of the North Oakland Community begun to discuss legal action after the City Planning Commission approved the liquor sales using an unprecedented legal finding that historical relevance is equivalent to a unique physical constraint. Regardless of who sues, an essential element of any lawsuit will be the adminstrative record, the legal findings used to support or deny the liquor sales and the actual regulations in place that govern liquor sales. What would be irrelevant are charges of gentrification, discrimination, and Mr. Pannell's self-proclaimed status as a "pillar" of the community.

Anonymous said...

We fight Blight, why must you use such disgusting words about the store. Everything on his blog is all negative. You can at least say that even though we dislike liquor stores so much this business owner has a perfect record when it comes to incidents at his store, and it is not thug friendly store. You are treating him and his family like they are scum of the universe. What about his daughter and grandson,they live right around the corner, are they not part of the community? I've been seeing her at all the neighborhood meetings and the opposed are scared to approach her with your questions. The shattuck NCPC chair is scared to talk to her why?? she is a very approachable lady. most likely when mr. pannell isn't able to work the store she is taking over. Another thing, what does mr pannell having a home in clearlake has to do with anything, what he is not allowed to leave Oakland? So when she takes over are you going to talk mess about how she owns multiple properties around and outside north oakland too. I think she should be considered a pillar of the community because she does work and live in this area, preventing juveniles from causing crimes and turning their life around. You also talk about the uhuru group, black commerce and geoffrey pete. How do you know if he knows them personally, maybe they heard about the mess
this man is going thru and decided to show up. You cant stop someone from showing up. Now here is one big thing you fail to admit and that is the large amount of supporters who live in the community and spoke. What about the lady who talked about the how she drinks wine every night, the lady who lives right next door and wanted to the fence and RV to stay, the man who owns that body shop next door, there was a at least six more who spoke on behalf of him and the live in the neighborhood. Seems to me you have selective hearing and listening. I read this whole blog and there are a many accusations from we fight blight. If it's more that one person who writes on this blog under the we fight blight name you need to check them because you are dead wrong. You are calling out people asking who they are and where they live but you yourself is hiding behind the curtain. Like that previous person said throwing rocks and hiding your hands.

Fight Blight said...

Dear Anonymous,

The majority of your questions have been asked and answered. However, we will answer them yet again.

No one is treating the Pannell's any different from other property owners. There are laws that property owners must follow. These laws apply to all. We only ask that the laws be applied to Mr. Pannell and his project in an objective fashion based on the facts.

It is customarily the project proponent who reaches out to the community to understand how the community feels about their proposed project. Mr. Pannell has not reached out to anyone in the community. Several members of the community have attempted to engage Mr. Pannell and his supporters in discussions over the project to determine if there are any overlapping interests. These discussions have been heated and emotional. It is clear, however, that Mr. Pannell's only interest is being able to sell alcohol with the fewest restrictions possible.

Mr. Pannells choice of residence is irrelevant under the current laws and regulations that govern alcohol sales in Oakland. Mr. Pannell and his supporters made his place of residence and his financial status an issue when they proclaimed Mr. Pannell to be a pillar of the community and when they claimed that not allowing him to sell alcohol would be a financial burden to him and his family. First, he does not live in North Oakland. I am not sure how he can be a pillar of the North Oakland Community when most people have never heard of him and he himself never attends community meetings and has not taken any leadership roles in the community. His only role in the community appears to be selling alcohol and convenience items.

Mr. and Mrs. Pannell own multiple properties in Alameda County. This suggests, though does not prove, they are not financially strapped. So it is not "poor old Mr. Pannell" that is proposing a liquor store, it is an educated, property owner and businessman that is proposing a liquor store.

Whether or not Mr. Pannell's daughter works with juveniles is irrelevant to the legal question at hand--does the project qualify for a major variance?

The Uhuru Group, the Black Chamber of Commerce, and Geoffrey Peete all supported the project and provided testimony at the public hearing. They are supporters of Mr. Pannell and he elicited their assistance on this project. By your comments you seem to imply these groups just showed up and that Mr. Pannell does not necessarily want them to support his project. Is that really true?

In addition to the above noted groups, there were also several other supporters of Mr. Pannell and his proposal to sell liquor. We have already reported that in previous posts. There were also large numbers of people who oppose the Nic Nak.

We have noted before that our identities at We Fight Blight are irrelevant. We want people to focus on the issues, the policies and the discussions, not the personalities. We have not requested people to identify themselves personally. However, we have asked people to identify whether they live in North Oakland or near the Nic Nak as a way for readers to understand a commenter's ties to the community. This is very important. Those most affected by the sales of liquor are residents of North Oakland. Knowing where a commentor lives gives greater context and meaning to their comments.

So Anonymous, it is clear that you support the Pannells and their proposal to sell liquor. We can respect that, but we also disagree and respectfully oppose your position as being detrimental to the community. If the Pannells and their supporters believe the We Fight Blight Blog is full of lies, accusations, and misinformation we suggest they start their own blog. Alternatively, we have offered Mr. Pannell an unedited platform to bring his message to the community. He has refused to take that offer. We find that unfortunate, but consistent with his stand of not engaging the community. Thanks.

kos said...

Thanks for keeping on this story. I appreciate your efforts on behalf of my community.