Can CUPS Force Out Liquor Stores in North Long Beach
10:52 AM PDT on July 31, 2012
It was a five year process that was finally approved in 2007: a strip of used car dealerships along Long Beach Boulevard were told that a Conditional Use Permit (CUP) would be required for their operation along with compliance of what were called "performance standards" that ranged from limiting lot size to landscaping.
The legal aspect1 of this part of city planning has its logical side: the city may have a use it wants under some circumstances and not under others. After all, unconditional uses on any level isn't practical in an urban space that must evolve and adapt with changes, including making neighborhoods more desirable to live in and more attractive to diverse businesses. In the words of Long Beach Planning Administrator Derek Burnham, "A CUP allows a city to consider uses that are not allowed as a matter of right within a zoning district, generally for the purpose of controlling certain uses which could have detrimental effects on the community."
There is an interesting caveat: just because a business pays into a CUP doesn't mean it will continue to operate. If said business doesn't live up to the standards imposed, even after paying into the CUP, they can be asked to leave. It is this fear that drives many of these businesses away: paying something for nothing.
In the eyes of gentrification, the used car dealer CUP was a success following the two-year amortization period--that is, the time in which a property owner has to conform or relocate when the uses of that business have been altered under amended zoning regulations--in which all dealerships were required to submit for a CUP. Of the 26 dealerships affected, 11 went out of business and 15 have either obtained a CUP or are in the process of obtaining one. The dealerships--previously occupied by standard, new car dealers--were a blight on Long Beach Boulevard according to those who supported the ordinance, with unkempt building facades and a generally unappealing feel that many felt detracted other businesses from proliferating in the area.
And now, this process that was placed on used car dealers is the inspirational mechanism with which 9th District Councilman Steve Neal and 8th District Councilmember Al Austin are using in order to drive liquor stores to better standards--or simply force them out.
The stats are unquestionable, especially when the 9th District--which is the north most district in the city, roughly cornered between South Street and 70th Street on the south and north, and Susan Road and Downey Avenue on the west and east--holds a third of the city's liquor stores besides only accounting for 20% of the city's population, amounting to a 3:1 ratio for a hard liquor store to every 10,000 residents.
The problems with these numbers are not just their disproportional character to that of every other district, but that the 9th District is home to the most "grandfathered" liquor stores or, in legal speak, legal nonconforming stores2. Under existing regulations, a new liquor store would require a CUP in order to operate, with common conditions including a limiting of operating hours and what that store could specifically sell, like most of the liquor stores in the more affluent districts. Grandfathered stores, however, do not have CUPs and are therefore not held to any standards, being able to sell anything from crack pipes to eerily realistic toy guns.
Besides detracting other businesses from moving in and operating as well as exacerbating the lack the safety for pedestrians on bicycles and feet, it also has a deeply severe psychological affect on its citizens. The 9th District's population is overwhelmingly young and family-oriented, with 38% of its population under 21 and 71% of its population being families with children. Given the large youth population, it is estimated that the average child in North Long Beach passes more than two liquor stores a day. This image-effect, that is, the persistent repetition of a particular thing in one's neighborhood, permits the child to think that such stores are part of the normal social fabric.
It was under these alarms that the City Council unanimously approved that the program idea of a pilot study be forwarded to the Planning Commission. However, this does not mean--just as the used car dealer process--that results are to immediately happen. The program idea is to see if, 1) a pilot study of instituting CUPs is NEEDED; and 2) to consider North Long Beach the home of that pilot study if it is deemed needed.
Though the Council was overwhelmingly supportive of the program idea, it did not pass without questions. For one, Councilmember Suja Lowenthal and Councilwoman Schipske both pointed out a desire for the ordinance to go city-wide (and, given the saturation the 9th District has in grandfathered liquor stores, direct the pilot study there firstly before applying the ordinance on a wider basis).
Also under question were the specific conditions that could be put in place. Amy Bodek, director of Long Beach Development Services, stated that the the following limitations or operational conditions could be legally be ordained: controlling of hours of operation, exterior nuisances such as payphones and vending machines, control and require closed-circuit television cameras, reduction and alteration in signage, amount of cooler space, as well as limit the amount of alcohol that can be sold in total, as well limiting sizes of individual bottles and the sale of "singles," i.e. individual cans or bottles from packages that contain 6 or 12.
In other words, they can retroactively impact the alcohol options; many supporters of business find this implementation to be murky since the businesses operate on uses that were previously approved. However, Assistant City Attorney Mike Mais noted Oakland and San Francisco as examples of cities that have successfully fought court challenges to implement such retroactive conditions.
It is unclear how long it will take the Planning Commission to determine whether CUPs are needed or when a pilot study in North Long Beach will be implemented.
1. A) California case law has established a number of fundamental principles relating to conditional use permits. In addition to the basic uses permitted within a zoning district, a city or county zoning ordinance can provide other specified uses which may be permitted after consideration and resolution by an administrative agency that the proposed use is in the best interest of public convenience and necessity and will not be contrary to the public health, morals, or welfare (Upton v. Gray (1969) 269 Cal.App.2d 352);
B) Local governments must have a complete and valid general plan before they can issue conditional use permits (Resource Defense Fund v. County of Santa Cruz (1982) 133 Cal.App.3d 800 and Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176);
C) The authority to consider conditional use permits, delegated to planning commissions or other administrative bodies by elected officials, must include standards of guidance. These standards of guidance are provided to insure that the delegation of discretion to an administrative agency is not unbridled and, thus, not invalid. The doctrine of the need of an ascertainable standard to guide an administrative body applies where the legislative body of a city attempts to delegate its law-making functions (Stoddard v. Edelman (1970) 4 Cal.App.3d 544).
2. Any new requirement for a legal nonconforming liquor store to obtain a CUP would necessitate an amortization period, like that instituted on the used car dealers, issued by the City Attorney's office.
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