Thursday, March 11, 2010
Approving Nic Nak Would Set Bad Precedent for Oakland
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 http://www.oaklandnet.com/ 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.