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.

Nic Nak Liquors Not Yet Agendized by City Council

As many of you know, approval of the Nic Nak Liquor Store by the City Planning Commission was appealed to the City Council by concerned residents including members of the East Lorin Neighborhood Association and the Shattuck Crime Prevention Council. A written appeal was submitted pointing out in excrutiating detail the flawed justification of the Planning Commission. Interestingly, the appeal was submitted in mid-October, yet the matter has yet to be agendized by the City. Members of the Community were told the matter would likely be agendized in January then it was pushed back to February, yet we still don't have a firm date. We suspect the City is having difficulty in completing the staff report which must address each and every point raised in the appeal. The approval by the City Planning Commission failed to adequately take into account the entirety of the public record, discounted or disregarded important elements of the public record, and then essentially fabricated a new definition for variances to approve the project.

Importantly, a new issue has been raised by the community. A review of public ownership records shows that the land is owned by Mr. and Mrs. Ashrious Pannell, but the building itself in which the proposed liquor use would reside is owned by Mr. Robert Oosley. Mr. Oosley is not one of the applicants and was not on the application that was approved by the Planning Commission. Normally, an applicant for a permit must have adequate site control with an appropriate legal site interest such as fee title, long-term lease, or other acceptable ownership so they can agree to and satisfy the conditions of the permit. Also, the City must ensure the applicant has adequate site control so they can enforce any conditions that are imposed on the project or on the land. In this case, most of the conditions of approval relate to both the land and the building. Apparently, the applicants have been questioned by the City and have informed them that Oosely is the maiden name of Mrs. Pannell. While that may be the case, it does not prove or verify that the Pannell's have an adequate site interest to be issued a permit. Mr. Robert Oosley is not Mrs. Ashrious Pannell. There is a split in ownership. Some members of the Community contend the Pannells must either have Mr. Oosley as a co-applicant or they must purchase the building from Mr. Oosely or enter into a long-term lease agreement with Mr. Oosley or some other acceptable form of legal site. With a split in ownership, the existing permit approved by the City Planning Commission may be invalid. In any case, the City must clear up this discrepancy in ownership before the matter is agendized by the City Council as it may not be ripe for review.