Donuts in the North Oakland Donut Hole

We have often reported on the baja 94609/94608/94703 zip codes as up and coming areas with good bones, great housing stock, easy access to transportation and proximity to a lot of great restaurants.

Now the area we refer to as the donut hole has gotten a lot better.

The donut farm opened up about six months ago at 6037 San Pablo Avenue in a small storefront in the Golden Gate Neighborhood.

The donut farm serves up yummy vegan donuts. For those of you who are thinking vegan donuts--no way--yes way. They really are yummy. You need to find your way to the donut farm. It is hard to miss so keep your eye out. Candy cap mushrooms that taste like maple syrup, orange, and chocolate donuts...yummy.

The Golden Gate Neighborhood is seeing a renaissance of sorts. The ever changing Emeryville is pushing its economic tentacles east and the stock of great housing in the neighborhood along with interesting, yet, affordable commercial spaces along San Pablo Avenue are attracting new uses and new residents. The donut farm is a great addition to a great neighborhood!

Oakland Public Works Cannot Get it Right

In February 2009, We Fight Blight noted a large amount of debris, furniture and household items on the sidewalk along the cul-de-sac at 656-665 53rd Street. This was immediately reported to Oakland Public Works with a request to remove the illegally placed or disposed debris, furniture and household items.

Upon returning to the location on March 7, 2009, we noted that most of the "stuff" was still on the sidewalk and again reported the problem to Public Works hopeful the removal would occur expeditiously. As of May 9, 2009, most of the "stuff" was still on the sidewalk, though it appeared that some items had been removed and some replaced with additional "stuff".

We Fight Blight again reported the problem to Public Works on June 17, 2009. On July 21, 2009 and November 4, 2009, We Fight Blight conducted field inspections which to our disbelief continued to reveal that Public Works had not removed the "stuff".

After conducting additional field inspections on December 6, 2009 and May 6, 2010 we found the"stuff" had yet to be removed. This despite mutiple written complaints, requests and phone calls to Public Works.

We Fight Blight visited the site again on January 9, 2011 and much to our dismay the "stuff" is still there. Why on earth does it take two years of repeated complaints to the City to have essentially no action and no response. Who's minding the shop?

Again on January 17, 2011, We Fight Blight reported the issue to the Public Works Department. The report number is 357686. Perhaps the Acting Public Works Director, Brooke Levin, can help us out here?

Nic Nak to Return June 1, 2010 for Fifth Public Meeting

The Nic Nak saga returns to the Oakland City Council on June 1, 2010 for its fifth public meeting. For what should have been an open and shut land use decision denying alcohol sales at 6400 Shattuck Avenue, the Nic Nak permit review has turned into a three ring circus replete with accusations of gentrification, racism and intolerance. While most of those charges have come from the supporters of the Nic Nak, including the applicant Ashrious Pannell, Jeffrey Pete of the Oakland Black Caucus and the Uhuru Group, Oakland City Council members Desley Brooks and Rebecca Kaplan have leveled their own accusations against neighbors who are fighting to maintain and improve their quality of life by uniting against what would be the 20th liquor store within a mile radius of Nic Nak in North Oakland and South Berkeley.

The Nic Nak representatives requested a delay in the vote so that their new attorney can come up to speed on the issues. Mind you this is their third attorney who has represented them over the past year. City Council, however, could not even agree on granting the delay, with a four to four vote, requiring the matter return on June 1, 2010 with a tie breaking vote by Mayor Dellums. If Mayor Dellums fails to show for the tie breaker, the matter will be voted on that evening. If Mayor Dellums votes in favor of the delay, the matter would be voted on June 15, 2010. Critics of the delay believe it is intended to provide the Pannell's with one more opportunity to lobby City Councilmembers behind the scenes.

Despite the fact the City's professional Planning Staff and the City Attorney have both come out against the Nic Nak, stating that the City cannot make the necessary legal findings to approve the project, and despite the City Attorney declaring publicly in its legal opinion the City would lose in court should it approve the Nic Nak using the rationale of "historical relevance", Councilmembers Desley Brooks, Rebecca Kaplan and Larry Reid  continue to support additional liquor stores in an already over saturated market.

While Councilmember Reid has been silent about his rationale for supporting more liquor stores, Councilmember Desley Brooks has been quite vocal and passionate in her desire to allow Nic Nak to sell liquor, arguing the City Attorney did not provide both sides of the case and did not provide appropriate citations to support his legal opinion. She also noted that because the City Council has made exceptions in the past allowing liquor to be sold near a school in Downtown Oakland, that justice demands the City Council look the other way and allow Nic Nak to sell liquor despite being within 1,000 feet of another liquor store.  In addition, Councilmember Brooks publicly rebuked those who are opposed to additional liquor sales by stating that she was privy to certain emails that raised the issue of race and that if people where brave enough to raise such concerns under the cover of a private email they should be brave enough to raise them in the light of day at the public hearing, implying that the emails were somehow racist in nature. All the while, she exhorted interested parties to rise above race and focus on the merits of the project. Despite her passionate support of liquor sales, Councilmember Brooks has yet to articulate a rational, legal basis for allowing Nic Nak a major variance.

Meanwhile, Councilmember Kaplan continued to exhibit her bizarre and seemingly poor leadership qualities over the Nic Nak affair. At the May 18th City Council meeting, she made a rambling and embarrassing apology to the audience, yet failed to provide any rationale as to why she wants to bring more liquor stores to North Oakland. However, she did provide some explanation to Robert Gammon of the East Bay Express for his article Kaplan Ensnarled in Racial Dispute. Discussing her vote supporting liquor stores she stated "This wasn't a quid pro quo" for black support.  "The fact is, I couldn't rule against this gentlemen [Pannell] based on what was in front of us." According to Gammon, "Kaplan contended that the anger focused on the store is misdirected because it hasn't attracted crime. And she pointed out that the only reason Nic Nak's permit is up for a vote is because Pannell closed the store for a time. If he hadn't, neighbors effectively would have no recourse to close it down permanently." Discussing the issue of race, Kaplan stated "Think about it, if you run a store that hasn't caused crime and people are trying to take away your permit, might not you wonder whether your race is an issue? And wouldn't you feel that's unfair?"

What is troubling about the political support for Nic Nak is a seemingly complete lack of understanding of the legal requirements and the necessity to make legal findings in approving the major variance. No one has taken away Mr. Pannell's permit. He lost his permit and his right to sell alcohol at 6400 Shattuck under the deemed-approved status for non-conforming liquor outlets by completely shutting down for five years. Moreover, neither Reid, Brooks or Kaplan have offered a sound, legal rationale for approving new liquor sales at Nic Nak that could pass judicial scrutiny. If you want to talk about the merits of  the proposed liquor sales, as Councilmember Brooks has requested, you need to evaluate the liquor sales against the City's stated policies and regulations and make the legal findings either supporting or denying a major variance for the liquor sales. It's not the community that is misdirected as Councilmember Kaplan states, it is Councilmembers Reid, Brooks and Kaplan's blind support for more liquor sales in Oakland.

Maybe, just maybe, these Councilmembers might realize the opposition to Nic Nak is not a racial issue, but a quality of life issue. Maybe they will realize that the claims of racism, gentrification and intolerance are simply a smokescreen intended to confuse the real legal issue because there is no legal rationale to approve Nic Nak. When evaluating whether the City has acted in an arbitrary and capricious fashion to approve a major variance, the courts will not rely on the emotional testimony of the applicants and their supporters, but the regulatory requirements and whether the Nic Nak meets the legal threshold for a major variance. The City Attorney says it does not.

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 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.