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.

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.