Thursday, March 11, 2010

Approving Nic Nak Would Set Bad Precedent for Oakland

The Nic Nak appeal will be heard by the City Council on Tuesday, March 16, 6:30 pm Oakland City Council Chambers, City Hall, Agenda Item 9.1. The appeal has been filed by concerned residents with support from the East Lorin Neighborhood Association, the Shattuck Crime Prevention Council, and business leaders. The Planning Commission approved the Nic Nak despite the objections of of North Oakland residents and City Planning Staff and the City Attorney who had previously informed the Planning Commission the City could not make the necessary legal findings to approve the liquor sales. Should the City Council uphold the Planning Commission's approval for liquor sales at Nic Nak it would set a significant precedent allowing other non-conforming liquor sales that have gone out of business to re-open, contrary to the existing law and established public policy of the City. Approval of Nic Nak would turn the deemed approved program for liquor sales on its head.

The intent of the deemed approved program for non-conforming liquor sales is to allow such uses to continue under very limited circumstances but to eventually bring such uses into conformance with the current City regulations or eliminate them altogether as an undesirable land use. To remain a deemed approved use the requirements for liquor stores include not creating nuisances and/or not having a lapse in continuous alcohol beverage sales for more than 90 days. In Nic Nak's case it was shut down for more than five years, well beyond the 90 day requirement. The Nic Nak's owners, the Pannells, even surrendered their state Alcohol Beverage Control license during this time. The Nic Nak was originally considered a non-conforming use because it was not consistent with the revised City regulations governing alcohol beverage sales that preclude liquor stores from being located within 1,000 feet of each other. The Nic Nak was not alone in being a non-conforming liquor store. Such non-conforming liquor outlets are abundant throughout the City of Oakland. The City's fundamental goal has been to reduce the over-concentration of liquor stores in Oakland.

The City Council adopted new regulations restricting liquor stores because of the demonstrated nuisances created by such uses including public drunkeness, public urination/defecation, littering, increased violent crimes, and public disturbances. It has been shown through peer reviewed studies at the local, state, national and international level that the problems associated with liquor stores are amplified when there is a concentration of liquor stores in any particular area.

Because the Nic Nak ceased operations for greater than 90 days its deemed approved status was terminated by the City. In seeking to sell liquor again, the Nic Nak is considered a new land use and therefore is required to obtain a Major Variance and a Major Conditional Use Permit. The Major Variance is required because of the 1,000 foot rule--the Nic Nak is 80 feet from another liquor store. The Major Conditional Use Permit is required because liquor sales are considered to be a potentially problematic land use that requires site specific conditions to restrict such uses and ensure they are not a nuisance to the community.

The Planning Commission approved a Major Variance allowing liquor sales at Nic Nak using an unprecedented and legally suspect  rationale that "historical relevance" is equivalent to a physical site constraint. Never before in the history of the City has such a rationale been used to approve any variance for any land use. We cannot find any precendent for such rationale in any other local jurisdiction. In the City of Oakland a variance is warranted when there is a unique physical or topographic site constraint with the property--such as an irregular lot size, unusual topogrpahy, or significant natural feature such as a large rock outcroping that other properties do not suffer from--that prevents the property owner from meeting the intent of the Oakland Planning Code. An economic hardship is not a legal basis for approving a variance. The Planning Commission asserted that because Mr. Pannell had owned the Nic Nak property for many years it would essentially create a hardship for him to move his liquor sales to another location that was consistent with the Oakland Planning Code because it would severe ties to his historic customers. This was the case even though the Nic Nak had been closed for more than five years and the Pannells had already voluntarily severed his ties with his historic customers by closing the store and surrendering his liquor license.

A great percentage of non-conforming liquor stores with a deemed approved status have historical ties to their physical location. That is the very nature of most deemed approved, non-conforming liquor uses throughout Oakland. Allowing the Nic Nak to re-open contrary to the requirements of the Oakland Planning Code would open the door for any other liquor store in Oakland with a deemed approved status that ceases operations for greater than 90 days to re-open under the suspect rationale of "historical relevance". This would substantially weaken the City Coucnil intent of ensuring that non-conforming uses either operate consistent with the requirements of the deemed approved status program or are eliminated. The policy for eliminating non-conforming liquor stores that violate the deemed approve status requirements and the imposition of the 1,000 foot rule was approved by the City Council to address the over-concentration of liquor stores in Oakland. There are already 20 off-site liquor sales within 1 mile of the Nic Nak. Allowing the Nic Nak to re-open removes a significant tool from the City's toolbox for addressing liquor stores in Oakland.
Allowing the Nic Nak to re-open and sell liquor is a bad precedent for the City of Oakland. If you don't want your neighborhood suffer the same fate, please make sure you express your views at the City Council Hearing.

When: Tuesday March 16, 6:30 pm Oakland City Council Chambers, City Hall Agenda Item 9.1

Speakers can also sign up on-line by going to On the home page there is a heading for City Council with a choice of Meetings and Agendas. Click on that: to the left of that is a choice to "Speak at Council". Click on that and follow the simple instructions. Speakers cards for the March 16 meeting can be filled out after 12:00 pm on Friday March 12, right up to 5 pm March 16.


ding dong the witch is dead said...

I am very pleased that this will finally be heard and, hopefully, settled once and for all in favor of the community. I will attend and I will speak out against this "proposed variance" that doesn't have a legal leg to stand on, which would do nothing to improve our standard of living and everything to detract from it. So will many of my neighbors.

Nice job Fight Blight!

Anonymous said...

I will attend the meeting and show my support for Nic Nak. They have been open for about a year now and still have not had any problems. Nic Nak is a good example of how liqour store should be. All other liquor stores in the neighborhood that do have problems should take notes from Mr. Pannell.

Fight Blight why don't you really "FIGHT BLIGHT" and go after the liquor stores in our neighborhood that are causing problems.

Anonymous said...

The Nik Nak delayed the hearing AGAIN. {Isn't this the 4th or 5th time?} There is speculation whether this relates to Mr. Pannell's declining health or is they are playing games with all the neighbors who oppose the license.

Only time will tell.

Anonymous said...

Anon 8:03

The Nik Nak does not sell liquor currently, therefore it is merely a convenience store. In my experience it is open rarely and randomly, which indicates no interest in being a functioning business, regardless of the liquor license.

While Mr. Pannell can control the activities on his property, he can not control the behavior of those who will be consuming the alcohol he hopes to sell. You need to speak to your neighbors about the conditions of that neighborhood when the Nik Nak was selling liquor. My neighbors, living a block away, claim that the neighborhood was filled with drugs, prostitution, and crime.

It is very clear to the majority of our neighbors that additional alcohol outlets are unwanted and unneeded.

Anonymous said...

It is really appalling that so much energy is placed on closing a small mom and pop business who have been in the community before many of you were born plus the business has  a  exceptional record since they moved to the neighborhood,  per the Police Report.  The complainers should spend some of your energy on helping the youth find quality education, recreation and employment. Perhaps the crime will be lowered in your neighborhood. Don’t forgot people will drink alcohol whether they remain open or close. I am sure some of the main people complaining drink some type of alcoholic beverage, so quit being a hypocrite.  

Anonymous said...

Anon 11:24 pm

"The complainers should spend some of your energy on helping the youth find quality education, recreation and employment."

Who says we aren't?

The vast majority of those involved in this effort are active, home owning, committed members of the Bushrod neighborhood. THAT is why we know what is going on and why we're working so hard to stop this license from being approved.

We know what will happen to not only our neighborhood, but other neighborhoods as well if this variance is approved. I find it interesting how those supporting the Nik Nak seem to think this is a 'little' issue. It isn't! This is a big deal that could effect many neighborhoods in Oakland, not just ours.

We care about our neighborhood and, yes, about those who've lived here 'forever' and those who've moved here recently.

Do you?

Anonymous said...

This argument towards the store is cowardly. The blog should be change to We Fight Nic Nak instead of We Fight Blight. The streets in north Oakland are a blight especially shattuck avenue. Where's the fight against the potholes? No post for that. What about the other stores that are thug magnets or has a lot of issues. Shouldn't there be a blog post for that? Nope. This is a Nic Nak blog. One story about a mural and safeway, everything else is Nic Nak. Makes me wonder....

Fight Blight said...

Dear Anonymous 5:17,

Interesting choice of words--cowardly. Actually the argument against the store is a legal argument, a public health argument and a public safety argument. Your blind support for liquor stores is somewhat interesting, though in our opinion a bit misguided and a bit misinformed. If you fully understood the blight and crime caused by an over-saturation of liquor stores perhaps you would not be so critical of our efforts. We invite you to re-read our posts on Nic Nak. There you will find links and references to local, state, national and international studies which show the abundant public health, crime and social problems associated with an over-saturation of liquor stores. We Fight Blight is not opposed to alcohol. In fact, we enjoy a good beer or glass of wine from time to time. We are, however, opposed to the over-saturation of liquor stores that is emblematic of Oakland.

We Fight Blight works on many issues: blighted and run down houses, abandoned vehicles, litter, tree planting, cracked sidewalks and even potholes on Shattuck. If you bothered to even read this blog you will have noticed that we worked to get the onramps at 51st to the freeway repaved by Caltrans and the portion of Shattuck Avenue in Berkeley repaved by the City of Berkeley. We have written several posts about the poor state of Shattuck Avenue in Oakland, have reported many of the potholes to the Public Works Department, have advocated with our City Council representative to secure federal funding to repave Shattuck, and have questioned the City as to why such a major thoroughfare is not even on the 5 year repaving plan for the City.

We Fight Blight spends a lot of time behind the scenes working on blight. We also spend a lot of time writing on issues such as Nic Nak because the problems of liquor stores need to be daylighted. We have nothing against the Pannell's except their desire to profit at the expense of the neighborhood by selling more alcohol in an already over-saturated market.

By the way Anonymous what have you done for your community lately?