DATE:
April 19, 2022
TO:
Christine Daniel, City Manager
FROM:
Charles S. Bryant, Community Development Director
SUBJECT:
Resolution Of The City Council Of The City Of Emeryville Modifying Condition VII.G.6 Of The Conditions Of Approval Of The South Bayfront Retail/Mixed Use Project Planned Unit Development/ Preliminary Development Plan Relating To The Number And Types Of Liquor Licenses Pre-Approved For The Bay Street Project (CEQA Determination: Exempt Pursuant To State CEQA Guidelines Section 15301, 15305, And 15061(b)(3)) Recommendation
Staff recommends that the City Council adopt the above-entitled resolution modifying the Planned Unit Development/Preliminary Development Plan (“PUD/PDP”) Condition of Approval that relates to the number and types of liquor licenses pre-approved for the South Bayfront Retail/Mixed Use Project, more commonly known as “Bay Street” or the “Bay Street Project”.
Background
On September 21, 1999, the City Council adopted Ordinance No. 99-009 approving the PUD/PDP for the Bay Street Project. The Bay Street development site is divided by Temescal Creek, and development to the south of the creek, identified as Block 1, consists of retail and entertainment uses including a multiplex theater and restaurant uses (Parcels A and B). Development to the north of the creek but south of Christie Avenue, Block 2, consists of retail, commercial and residential uses along Bay Street (Parcels C, D, and E). Development north of Christie Avenue, Block 3, consists of the Hyatt Place Hotel and a vacant retail pad. (See Attachment 1, Bay Street Parcel Locations.) On April 20, 2000, the City Council adopted Resolution No. 00-77 approving a Final Development Plan (“FDP”) for the Retail/Entertainment Component of the Bay Street Project, including findings regarding public convenience and necessity for the issuance of up to 15 liquor licenses by the California Department of Alcoholic Beverage Control (ABC). On December 19, 2000, the City Council adopted Resolution No. 05-168, approving an FDP for the Residential Component of the Bay Street Project. On November 18, 2003, the City Council adopted Resolution No.03-165 amending the Residential FDP primarily to address design refinements, and on September 20, 2005, the City Council adopted Resolution No. 05-168 amending the Retail/Entertainment FDP to address façade improvements and signage. On August 7, 2007, the City Council adopted Resolution No. 07-155 approving an FDP for a retail building for the West Elm furniture store. For all of these FDPs, the Council adopted amended Conditions of Approval applicable to the entire Bay Street Project that superseded all prior conditions of approval for the development.
Subsequently, the Planning Regulations were amended such that FDPs now require Planning Commission approval and are only considered by the City Council if appealed. To date, the Commission has approved two FDPs for the Bay Street Project, including the Hyatt Place Hotel on April 24, 2014 (FDP13-002), and the Bay Street Grocery Store on February 24, 2022 (FDP21-002). Each of these FDPs had their own separate Conditions of Approval tiering off of the Conditions of Approval for the PUD/PDP.
Thus, the most recent comprehensive set of Conditions of Approval applicable to the overall PUD/PDP are those associated with the West Elm furniture store from 2007.
Condition of Approval VII(G)(6) of the PUD/PDP states:
“As part of the first FDP for the project, the applicant shall provide and the City Council shall confirm the number and types of liquor licenses preapproved for the overall project.
The retail/entertainment component of the project may have up to 30 uses involving the sale or consumption of alcoholic beverages (30 separate liquor licenses). However, only a maximum of 15 of these uses are currently found to be appropriate with regards to public convenience and necessity as delineated: up to 9 restaurant uses that serve beer and wine; up to 6 restaurant uses that serve beer, wine and liquor; and up to 2 tenants that sells alcohol for consumption off-premises. No more than 5 of these original 15 uses involving the sale or consumption of alcoholic beverages shall be located in Block 2. These 15 uses and any additional uses up to 30 such uses still require the appropriate Planning review as set forth in Conditions of Approval VIII.G.3 and VIII.G.4 above. Any such uses above the first 15 uses shall still require a City Council resolution of convenience and necessity. Any other modifications to this requirement will require approval of the City Council.” This Condition of Approval is problematic for several reasons. First, under State liquor license law (California Business and Professions Code Section 23958.4), local jurisdictions only have the authority to issue findings of public convenience or necessity for liquor stores, convenience stores, and bars, but not for restaurants. Thus, the provision of the above condition that makes a finding of public convenience and necessity for up to 15 restaurants is unnecessary and confusing. Second, it distinguishes between restaurants that sell beer and wine, and those that sell beer, wine, and liquor, while there is no such distinction in the Emeryville Planning Regulations. Finally, the condition of approval provides for 15 uses but delineates 17. Staff believes the intent of this condition of approval was to limit the number of uses to 15 and also to limit the number of specific uses. Staff also notes that the condition of approval does not directly reference State Department of Alcoholic Beverage Control (“ABC”) license types and that, at the time this condition of approval was originally written, urban breweries and wineries were relatively uncommon.
The State Department of Alcoholic Beverage Control (“ABC”) categorizes the license types addressed by the condition of approval as follows: restaurants that serve beer and wine are “Type 41” licenses, restaurants that serve beer, wine and liquor are “Type 47” licenses, and businesses that sell alcohol for consumption off-premises could be “Type 20” (beer and wine package store), “Type 21” (beer, wine and liquor package store), “Type 23” (small beer manufacturer, i.e. a microbrewery or brewpub), or “Type 2” (winegrower, i.e. a winery). Of these, only types 20 and 21 require a finding of public convenience or necessity from the City.
Currently, there are no restaurant uses operating at Bay Street that serve beer and wine (Type 41), four restaurant uses that serve beer, wine and liquor (Type 47, includes Hyatt Place Hotel, P.F. Chang’s, California Pizza Kitchen, and AMC Theatre), and no tenants that sell alcohol for consumption off-premises, for a total of four uses involving the sale or consumption of alcoholic beverages, one of which, P.F. Chang’s, is located in Block 2. (AMC and California Pizza Kitchen are in Block 1, while the hotel is in Block 3.) Discussion
In Spring 2021, CenterCal Properties (“CenterCal”) purchased the Bay Street Project and shortly thereafter began work to reposition the shopping center by improving the food terrace, pursuing approvals to construct a grocery store and improve pedestrian/bicycle infrastructure, and making other improvements to accommodate a variety of new tenants.
As part of this effort, CenterCal intends to introduce additional restaurant uses to Bay Street, several of which are expected to require licenses to serve beer, wine and liquor. CenterCal may also consider leasing to microbrewery or winery businesses. Accordingly, CenterCal is requesting flexibility in the types and locations of businesses that serve alcohol at Bay Street.
Specifically, CenterCal requests the removal of the distinction between restaurants that serve beer and wine and restaurants that serve beer, wine and liquor; clarification that tenants that sell alcohol for consumption off-premises could include Type 21 licensees such as a grocery store as well as microbreweries, brewpubs and wineries (Type 23 and Type 2 licensees, respectively); and the ability to introduce up to seven alcohol-related uses in Block 2 (i.e., north of Ohlone Way). CenterCal is not requesting additional uses beyond the 15 originally approved.
Because CenterCal’s request would exceed six restaurant uses that serve beer, wine and liquor and five alcohol licenses located in Block 2, Condition of Approval VII(G)(6) would require modification, which requires approval by the City Council.
Staff proposes to clarify the condition by allowing up to 15 liquor licenses in the Bay Street Project, of which up to eight may be in Block 2, and specifying that up to three of these liquor licenses may be off off-sale, for which a finding of public convenience or necessity is approved. The attached draft resolution would modify Condition of Approval VII(G)(6) to provide this additional flexibility in the types and locations of uses serving alcoholic beverages, as well as modernize and clarify terminology consistent with ABC license types, as follows (deletions are shown in strike-through type and additions are underlined):
“As part of the first FDP for the project, the applicant shall provide and the City Council shall confirm the number and types of liquor licenses preapproved for the overall project.
The retail/entertainment component of the project may have up to 30 15 uses involving the sale or consumption of alcoholic beverages (30 15 separate liquor licenses). However, only a maximum of 15 of these uses are currently found to be appropriate with regards to public convenience and necessity as delineated: up to 9 restaurant uses that serve beer and wine; up to 6 restaurant uses that serve beer, wine and liquor; and up to 2 tenants that sells alcohol for consumption off-premises. These 15 uses may be any combination of restaurant uses that serve beer and wine [State Department of Alcoholic Beverage Control (“ABC”) Type 41 licensees] and restaurant uses that serve beer, wine and liquor [ABC Type 47 licensees]. These 15 uses may also include a maximum of three uses that sell alcohol for consumption off premises [ABC Type 2, Type 20, Type 21 and Type 23 licensees], and which are found to be appropriate with regard to public convenience or necessity. No more than 5eight of these original 15 uses involving the sale or consumption of alcoholic beverages shall be located in Block 2. These 15 uses and any additional uses up to 30 such uses still require the appropriate Planning review as set forth in Conditions of Approval VIII.G.3 and VIII.G.4 above. Any such uses above the first 15 uses shall still require a City Council resolution of convenience and necessity. Any other modifications to this requirement will require approval of the City Council.”
ENVIRONMENTAL REVIEW
The proposed amendment to the Conditions of Approval of the Bay Street Project is exempt from the California Environmental Quality Act (CEQA) under State CEQA Guidelines Section 15301, which applies to the operation, permitting, and licensing of existing facilities involving negligible or no expansion of use; Section 15305, which applies to minor alterations in land use limitations; and the “common sense exemption” at Section 15061(b)(3) because it can be seen with certainty that there is no possibility that the proposal may have a significant effect on the environment.
Fiscal ImpacT
Bay Street is an important contributor to the fiscal health of the City. Currently, nearly 25% of the shopping center’s retail spaces are vacant, and sales tax revenues from the shopping center have declined as a result. Providing additional flexibility on the types and locations of uses that can be sited at Bay Street will contribute positively to the City’s sales tax revenues by putting vacant tenant spaces into productive use and increasing the overall level of activity at Bay Street.
Staff Communication with the Public
None.
Conclusion
Staff recommends that the City Council adopt the attached resolution modifying Condition of Approval VII(G)(6) to provide additional flexibility in the number, types and locations of tenants allowed to serve alcoholic beverages at Bay Street.
PREPARED BY: Chadrick Smalley, Economic Development and Housing Manager Approved and Forwarded to the
CITY COUNCIL OF THE CITY OF EMERYVILLE:
Christine Daniel, City Manager
Attachments
Bay Street Parcel Locations
Draft Resolution
Bay Street Liquor License Modification
City Council | April 19, 2022
City of Emeryville
CALIFORNIA
MEMORANDUM