1025 Gilman Street Whole Foods Market

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1 Z O N I N G A D J U S T M E N T S B O A R D S t a f f R e p o r t FOR BOARD ACTION JANUARY 14, Gilman Street Whole Foods Market Use Permit Modification #ZP to allow service of beer and wine in an existing cafe area and to add distilled spirits sales to existing wine and beer sales at an existing full service grocery store. I. Background A. Land Use Designations: General Plan: Avenue Commercial Zoning: C-W West Berkeley B. Zoning Permits Required: Use Permit Modification to allow sales of distilled spirits for off-site consumption in addition to sales of beer and wine at an existing grocery store (Whole Foods Market), under BMC sections 23E A and 23E ; and Administrative Use Permit to allow service of beer and wine incidental to food services at an existing quick-service café within While Foods Market, under BMC Section 23E A and 23E C. CEQA Determination: Categorically exempt pursuant to Section of the CEQA Guidelines ( Existing Facilities ). D. Parties Involved: Applicant: CITYshapers, Inc. (c/o Dwane Kennedy), 101 California Street, Suite 2710, San Francisco, CA Property Owner: Gilman Partners, LLC (c/o Foothill Partners), 1121 White Rock Road, Suite 205, El Dorado Hills, CA Milvia Street, Berkeley, CA Tel: TDD: Fax: zab@ci.berkeley.ca.us

2 January 14, 2016 Page 2 of 10 Figure 1: Vicinity and Zoning Map with Type 21, 41 and 47 alcohol licenses within 1,000 feet of the Project 1 Project Site Address License Type DBA 1019 Camelia Street 41 - On Sale (beer and Wine) - Eating Place Sushi Banzai 1049 Gilman Street 21 - Off Sale General Pic and Pac Liquor 1050 Gilman Street 47 - On Sale General - Eating Place Chipotle Mexican Grill 1233 San Pablo Avenue 41 - On Sale (beer and Wine) - Eating Place Sabuy Sabuy II 1235 San Pablo Avenue 41 - On Sale (beer and Wine) - Eating Place Meal Ticket 1317 San Pablo Avenue 41 - On Sale (beer and Wine) - Eating Place Ashkenaz Music and Dance Community Center 1335 San Pablo Ave 41 - On Sale (beer and Wine) - Eating Place La Palmita Cafe th Street 47 - On Sale General - Eating Place T Rex BBQ 1 On December 17, 2013, the City Council rezoned the project site and parcel located at 1318 Tenth St (immediately to the south) from MULI to C-W.

3 January 14, 2016 Page 3 of 10 Figure 2: Site Plan

4 January 14, 2016 Page 4 of 10 Figure 3: Floor Plan Beer sales area Café Area Wine and Distilled Spirits sales area Table 1: Land Use Information Location Existing Use Zoning District General Plan Designation Subject Property: Whole Foods Grocery Store C-W Avenue Commercial Surrounding Properties North South Commercial (warehouse, light industrial) Commercial (restaurant, retail, office) MU-LI C-W Manufacturing Manufacturing/Avenue Commercial East Commercial (retail) C-W Avenue Commercial West Commercial (office, light industrial) MU-LI Manufacturing

5 January 14, 2016 Page 5 of 10 Table 2: Special Characteristics Characteristic Alcohol Sales/Service Creeks Excavation/Slope Historic Resources Oak Trees Seismic Hazards Applies to Project? Yes No Explanation The Whole Foods is proposing to serve beer and wine in the café and add distilled spirits to the existing selection of beer and wine for off-site sale in an existing grocery store. The project site is within the City s Environmental Management Area and is also within a liquefaction area as defined under the state Seismic Hazards Mapping Act. However, no new construction, alterations to land or the existing building, or substantial changes in the type or intensity of use are proposed. Any site contamination and geotechnical concerns were addressed during the building permit process for the approved building and use. Modifications to alcoholic beverage sales and service in the existing store would not affect any of these environmental conditions. Table 3: Project Chronology Date Action September 23, 2015 Application submitted October 23, 2015 Application deemed complete December 23, 2015 Public hearing notices mailed/posted January 14, 2016 ZAB hearing II. Project Setting A. Neighborhood/Area Description: The subject property is located on the north side of Gilman Street between Ninth and Tenth Streets (one block west of San Pablo Avenue). The surrounding neighborhood supports a considerable diversity of commercial uses, including restaurant, retail, office, warehouse and light industrial uses. The nearest residential area begins two blocks east at Kains Avenue. As depicted in Figure 1, in addition to the existing Whole Foods store, there are a number of other licensed alcoholic beverage operations in the neighborhood, including, among others, the Pic n Pac liquor store one block to the east at San Pablo Avenue and Gilman Street; the Walgreens store directly across Gilman Street; and six restaurants or cafes with different levels of incidental alcohol service. B. Site Conditions: The property is a 1.79-acre, generally flat and fully developed parcel on the north side of Gilman Street between Ninth and Tenth Streets. The Whole Foods Market opened in November It has approximately 47,170 square feet of floor area and provides 134 parking spaces accessed from Ninth and Tenth streets. In addition to the standard food and produce selections, the store features prepared food services including both carry-out and in-store dining in the form of a café with limited seating and a coffee roastery. The store also conducts instructional tastings of beer and wine in different parts of the store depending on the food/wine or beer pairing being featured. For example, a winegrower may want to hold an instructional tasting

6 January 14, 2016 Page 6 of 10 event near the cheese counter to teach customers how specific cheeses and wines interact, or near the meat department for a meat pairing. A loading dock with truck access is located at the rear of the building, with access to Ninth Street. III. Project Description A. The Whole Foods Market currently has a Use Permit (ZP # ) allowing beer and wine sales, for off-site consumption, and on-site instructional tasting of beer and wine. These approved uses correspond to the California Department of Alcoholic Beverage Control (ABC) licenses Types 20 and Type 86, which are described as follows: ABC Type 20 License: (Package Store) Authorizes the sale of beer and wine for consumption off the premises where sold. Minors are allowed on the premises. ABC Type 86 License: Issued to the holder of and premises of a Type 20 or Type 21 licensee, authorizes the tasting of alcoholic beverages as authorized to be sold from the off-sale premises, on a limited basis. Requires physical separation from the off-sale premises while tasting is taking place and generally requires the participation of a specifically-authorized manufacturer or wholesaler licensee. With this application, ZP # would be modified to also allow sales of distilled spirits, replacing the Type 20 ABC license with a Type 21 license. The existing Type 86 license would also allow Whole Foods Market to conduct instructional tastings of distilled spirits if the existing Type 20 license is upgraded to a Type 21 license. Whole Foods Market operates a café in the store where customers can order and eat prepared foods. Whole Foods Market is seeking a new Use Permit to allow the sales of wine and beer in conjunction with the food sales in the café. Whole Foods Market has applied for a Type 41 ABC license. The floor area (footprint) devoted to beer and wine sales is approximately 1,260 square feet, which represent approximately 2.7% of the overall store area of approximately 47,170 square feet. The proposed project calls for upgrading the existing Type 20 ABC license to a Type 21 license, which would allow the store to sell distilled spirits for off-site consumption, along with the existing wine and beer selections. No change in the footprint of the store is proposed to accommodate this new line of merchandise; rather shelf space would be provided in the existing wine display area. In addition, a new Use Permit is requested to allow the service of wine and beer to accompany the sales of prepared foods in the café area, adjacent to the coffee roastery in the southwest corner of the store. This would require a Type 41 ABC license.

7 January 14, 2016 Page 7 of 10 IV. Community Discussion A. Neighbor/Community Concerns: Prior to submitting this application to the city on September 23, 2015, a pre-application poster was posted at the site.. On December 22, 2015, the City mailed 114 public notices to adjoining property owners and occupants, and to interested neighborhood organizations and posted the public notice at and around the project site. At the time of this writing, staff has not received any communications regarding the project. B. Design Committee Review: As no changes are proposed to the land or the building as part of this application, the project does not require Design Review. C. Berkeley Police Department: On September 25, 2015, Planning staff referred this Use Permit application to the Berkeley Police Department (BPD). On October 29, 2015, the BPD indicated they have no objection to serving of beer, wine in the café, or to offer the sales of distilled spirits, within the existing Whole Foods grocery store. (Attachment 4). V. Issues and Analysis B. Consistency with Purposes of the Zoning District: In order to approve Use Permits in the C-W zoning district the Board must find that the proposed use is a) consistent with the purposes of the District, and b) compatible with surrounding uses and buildings. The proposed project would expand the offerings of alcoholic beverages at the existing Whole Foods Market, which has been found to be consistent with the purposes of the C-W District in that it provides important commercial services for area and citywide residents and helps implement the West Berkeley Plan s designation of this area as a commercial district. Approval of the Use Permits would support the retention of the store by allowing it to expand its product lines thereby increasing its levels of service and desirability to customers. The immediately surrounding neighborhood is a diverse mix of commercial and light manufacturing land uses; the expansion of alcoholic beverage sales at the existing store and beer and wine service in the café would not be expected to result in land use conflicts and the Berkeley Police Department has indicated that there are no crime concerns if Whole Foods Market expands the sale of beer and wine to also include distilled spirits. C. Alcoholic Beverage Sales: The retail sales of alcoholic beverages for off-site consumption are regulated by BMC 23E , which requires findings of Public Convenience or Necessity if an existing establishment has an ABC license of the same type, other than alcohol service incidental to food service, within a 1,000-foot radius of the project site. In this case, there is one establishment, within a 1,000 feet, that sells wine, beer and spirits (Pic n Pac Liquors Type 21 License) and one

8 January 14, 2016 Page 8 of 10 establishment that sells wine and beer (Walgreens Type 20 License). Accordingly, the Findings of Public Convenience or Necessity must be made. Staff believes this application satisfies the required findings as analyzed below. 1. The proposed establishment will promote the City s economic health, contribute to General Plan or Area Plan policies or further District purposes. The expansion of alcoholic beverage offerings to include distilled spirits would increase consumer choices at the existing grocery store, thereby strengthening the neighborhood-serving retail environment in the West Berkeley and marginally adding to the City s tax revenues. 2. The economic benefits associated with the establishment could not reasonably be achieved without the proposed alcohol sales. According to the applicant statement, the retail sales of distilled spirits is a critical component of Whole Foods Market s national sales program which is known for its extensive complement of foods, beverages and personal care items. The incidental sale of beer and wine would also compliment the café business. The approval of these proposed permits to sell distilled spirits for off-site consumption would increase overall sales and add to the economic success of the existing store. 3. If the applicant has operated a licensed establishment that has been the subject of violations regarding alcohol in the State of California, or violations of public safety or nuisance statutes or regulations in the City of Berkeley as verified by the Police Department, the Board shall determine whether such violations indicate a high likelihood of further violations and/or detrimental impacts from the proposed establishment. In making this determination, the Board may consider the number, frequency, and severity of prior violations, the time elapsed since the last violation, and other relevant factors. A license query from the California Department of Alcoholic Beverage Control indicates that the Whole Foods Grocery in south Berkeley has had one violation in the last 25 years, for sale of alcohol to a minor in an ABC sting operation in While Whole Foods is not the project applicant, staff has determined that one violation in 25 years does not constitute a pattern or tendency which might suggest future problems with operations or management. ABC also confirmed that chain stores such as Whole Foods are not considered one entity; rather each store is a separate entity with its own separate license and violation record. This information was provided by Carolina Suson, an agent with the ABC. 4. If the proposed establishment is located within one thousand (1,000) feet of any public park or Berkeley Unified School District (BUSD) school, the Board shall take into consideration the effect of the proposed establishment upon such sensitive public uses. 2

9 January 14, 2016 Page 9 of 10 Although the project location is not located within 1,000 feet of any Berkeley Unified School District (BUSD) school, it is approximately 750 feet south of Codornices Path and the recreational facilities within the UC Village complex in Albany. However, the path and park are over two blocks, and more than 1,000 feet walking distance, from the site. The proposed type of alcohol-related use is not expected to have external impacts on the surrounding neighborhood, or, more specifically, on those public recreational resources. 5. The Police Department has reported that the proposed establishment would not be expected to add to crime in the area. The Berkeley Police Department (BPD) submitted a memorandum dated October 29, 2015 (attached to this staff report) concluding that the proposed expansion of alcohol sales would not be expected to add to crime in the area. The BPD notes in the memorandum that Whole Foods existing store at 3000 Telegraph Avenue already has an ABC Type 21 License and a records review revealed no significant crime concerns relating to the sale of distilled spirits for off premise consumption. The Police Department noted that Whole Foods has both uniformed and plain clothed security personnel on site at all times and that there are security cameras throughout the business. D. General and West Berkeley Plan Consistency: The 2002 General Plan and 1993 West Berkeley Plan contain several policies applicable to the project, including the following policies and statements from these adopted plans: General Plan Policy Analysis: The 2002 General Plan contains several policies applicable to the project, including the following: 1. Policy LU-1 Community Character: Maintain the character of Berkeley as a special, diverse, unique place to live and work. Staff Analysis: The expansion of alcohol sales for off-site consumption and beer and wine services in an existing quick serving café within a grocery store, expands services to the local workers and residents in the immediate neighborhood and other customers from the larger Berkeley community which helps maintain the character of Berkeley as a special, diverse, unique place to live and work. 2. Policy LU-7 Neighborhood Quality of Life, Action A: Require that new development be consistent with zoning standards and compatible with the scale, historic character, and surrounding uses in the area. Staff Analysis: The proposed business would be subject to conditions of approval regarding potential noise, littering and loitering and good management practices to ensure minimal impacts on any nearby residential uses.

10 January 14, 2016 Page 10 of 10 West Berkeley Plan Policy Analysis: The 1993 West Berkeley Plan (WBP) contains several policies applicable to the project, including the following: 1. Policy 1.C: Providing space for, and designating appropriate locations for in planning and zoning policies both neighborhood and regional serving retail businesses. 2. Policy 1.E: Create a Commercial district which will foster the continued vitality of West Berkeley's neighborhood and regional serving retail trade, in as pedestrianfriendly a manner as possible. 3. WBP, from Overview of the Districting Concept: Retail uses should be clustered, to strengthen existing retail areas, to make them for walkable, and to prevent retail sprawl. Staff Analysis: The proposed expansion of alcoholic beverage sales and service in the existing grocery store would support the retention of the existing store by allowing it to remain competitive by expanding the range of goods sold to include a) distilled spirits for grocery shoppers and b) beer and wine options for customers at the café. This increase in the options available to West Berkeley shoppers would further diversify the commercial area and strengthen the walkable retail cluster, along San Pablo Avenue and at the shopping areas across Gilman that include REI, Walgreens, Office Depot and other stores. Based on the discussion above, it is staff s opinion that the proposed project is consistent with the General Plan, West Berkeley Plan and Municipal Code, and would be compatible with the neighborhood. Staff also believes that the required Public Convenience or Necessity findings can be made for the project. VI. Recommendation Because of the project s consistency with the Zoning Ordinance and General Plan, and minimal impact on surrounding properties, staff recommends that the Zoning Adjustments Board: APPROVE #ZP pursuant to sections 23B and 23E , subject to the attached Findings and Conditions (see Attachment 1). Attachments: 1. Findings and Conditions 2. Applicant Statement and Project Plans, received September 23, Berkeley Police Department memorandum, dated October 29, Notice of Public Hearing, dated December 23, 2015 Staff Planner: Immanuel Bereket, ibereket@ci.berkeley.ca.us (510) ; Doug Donaldson, Contract Planner, dougdonaldson@me.com; (510)