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HomeMy WebLinkAboutMinutes - Minutes - Boards of Adjustment - Meeting Date: 11/9/2017 MINUTES CITY OF GLENDALE BOARD OF ADJUSTMENT COUNCIL CHAMBERS BUILDING CONFERENCE ROOM B-3 NOVEMBER 9,2017 4:00 P.M. CALL TO ORDER The meeting was called to order at approximately 4:00 p.m. ROLL CALL Board members, Carl Dietzman, Cathy Cheshier, Michael Wilson, Reginald Martinez and Vice Chair Erminie Zarra,were present. BOARD MEMBERS ABSENT: Chairperson Lawrence Feiner was absent. CITY STAFF Tabitha Peny, Assistant Planning Director, Russ Romney, Deputy City Attorney, Thomas Ritz, AICP Senior Planner, and Cindy Gilchrist,Recording Secretary were present. APPROVAL OF THE MINUTES Vice Chair Zarra called for approval of Minutes of the July 13, 2017 Board of Adjustment Meeting. BOARD MEMBER DEITZMAN MADE A MOTION TO APPROVE THE MINUTES FROM THE JULY 13, 2017 BOARD OF ADJUSTMENT MEETING. BOARD MEMBER CHESHIER SECONDED THE MOTION,WHICH WAS APPROVED UNANIMOUSLY. WITHDRAWALS AND CONTINUANCES Vice Chair Zarra asked staff if there were any requests for withdrawals or continuances. There were none. PUBLIC HEARING ITEMS Vice Chair Zarra called for staff's presentation on the public hearing items. 1. VAR17-03: A request by Adam Baugh of Withey Morris, to allow a Medical Marijuana Dispensary to be located 965 feet from a school and 1,250 feet from a second school when the Zoning Ordinance prohibits Medical Marijuana Dispensaries from being located within 1,320 feet of an elementary, secondary or high school. The property is zoned C-2 (General Commercial). The site is located east of the northeast corner of Bell Road and 59th Avenue at 5626 West Bell Road, and is in the Sahuaro District. Mr. Thomas Ritz, AICP Senior Planner stated this was a request by Adam Baugh of Withey Morris, to allow a Medical Marijuana Dispensary to be located 965 feet from a school and 1,250 feet from a second November 9,2017 Board of Adjustment Minutes Page 2 school when the Zoning Ordinance prohibits Medical Marijuana Dispensaries from being located within 1,320 feet of an elementary, secondary or high school. The property is zoned General Commercial. Mr. Ritz provided a brief history of the property. The property was annexed to the City of Glendale in 1970. The property has never been part of a subdivision. The property was zoned General Commercial in 1997. Additionally, the City of Glendale adopted an amendment to the Zoning Ordinance in 2011, following the. statewide legalization of medical marijuana by Arizona voters. Since this time, two medical marijuana dispensaries have opened in Glendale, and staff has approved the location of three additional potential medical marijuana dispensaries in Glendale. These three unopened dispensary locations all qualify by right, meeting the criteria in the City of Glendale Zoning Ordinance without the need for a variance. In conclusion, Mr. Ritz stated that staff's recommendation is that the variance request appears not to meet all four findings and should be denied. Mr. Ritz stated the Board of Adjustment must analyze four findings based on the evidence in the record prior to granting a variance. Mr. Ritz reviewed staffs findings. 1. There are special circumstances/conditions applicable to the property including size, shape, topography, location or surroundings,which were not self-imposed by the owner; Mr. Ritz said staff believes that the variance is self-imposed. Staff finds that the size, shape, topography, location, or surroundings of this property are not unusual. He noted the applicant has not provided any evidence to staff that the property cannot be used for a variety of C-2 land uses, nor that no other sites exist in Glendale for medical marijuana dispensaries. The applicant is seeking to locate a medical marijuana dispensary that is located too close to two schools. Both school properties are located less than the required 1,320 lineal feet from the proposed tenant suite. He said the applicant provided a property survey showing that the proposed dispensary was located too close to the schools. Staff believes these are self-imposed hardships because the applicant was aware of the required separations. Staff believes there are no special circumstances or conditions applicable to the property that has changed since the Zoning Ordinance was amended to permit medical marijuana dispensaries in 2011 Staff believes the present proposal represents creation of a special circumstance which is self-imposed by the property owner. 2. Due to the special circumstances, the strict application of the Zoning Ordinance would deprive the property of privileges enjoyed by other properties in the same classification in the same zoning district; Mr. Ritz explained that the strict application of the Zoning Ordinance would prohibit the proposed medical marijuana dispensary from operating on this site; however, the same separation requirement imposed by the Zoning Ordinance on this property prohibits this land use on numerous other C-2 zoned November 9,2017 Board of Adjustment Minutes Page 3 properties throughout the city. Staff believes the Ordinance does not deprive the property of privileges enjoyed by other properties of the same classification in the same zoning district. Staff believes the applicant could have chosen to follow the Zoning Ordinance with regard to the location of medical marijuana dispensaries, rather than proposing the land use at this location. Staff believes the Zoning Ordinance does not prevent the applicant from privileges enjoyed by other properties of the same classification in the same zoning district. 3. The variance requested is the minimum necessary to alleviate the property hardships. Mr. Ritz said staff believes the variance is not the minimum necessary to alleviate a property hardship that does not exist. He noted the applicant provided a property survey showing that the proposed dispensary was too close to the existing schools. Staff believes no special circumstances or conditions exist on the property and that the variance requested goes beyond the minimum necessary to permit commercial businesses on this property. Staff believes the requested variance is not the result of a property hardship but one of personal preference for this proposed land use. 4. Granting the variance will not have a detrimental effect on the property, adjoining property, surrounding neighborhoods or the city in general. Mr. Ritz said staff believes the requested variance will have a detrimental effect on the adjoining properties, surrounding neighborhoods, and the city in general. The City of Glendale Zoning Ordinance provides for a required distance separation between schools and the sale of medical marijuana. Staff believes the Zoning Ordinance, including the designation of zoning districts with standards where medical marijuana is permitted, is designed to protect the health and safety of the residents of the city and establish performance standards for development in the various zoning districts of the city Staff believes the variance requested is out of character with other uses in the neighborhood and that the existing residents and businesses of the neighborhood have relied on the requirements of the existing zoning requirements in purchasing their homes and living in the neighborhood or purchasing their businesses and doing business in the neighborhood. If approved, staff believes this proposed variance would establish a precedent that other similar businesses in the Bell Road Corridor and throughout the City of Glendale may try to copy and imitate. In conclusion, Mr. Ritz stated that staff's recommendation is that the variance request appears not to meet all four findings and should be denied. He said he was available for questions. Board member Cheshier referred to the aerial map and asked what the name of the designated area was. The reply was Glendale North. She inquired if there was a map showing other dispensaries in the area. Mr. Ritz stated there were none, however, there have been successful applications of these cases. He named some of the dispensaries in the Glendale area. Vice Chair Zarra called for the applicant to make a presentation. November 9,2017 Board of Adjustment Minutes Page 4 Mr. Adam Baugh, applicant's representative stated what he hopes to present for the Board today, is the necessity of this request and the legal standards that justify the approval of this variance. He explained that marijuana was an interesting topic that brings forth a lot of feelings both for and against. He hopes the Board can put away any particular feelings such as biases and just look at the facts of the case. Mr. Baugh provided a power point presentation to help educate the Board regarding marijuana, dispensaries, licenses and the laws in Arizona. He explained CHAA means Community Health Analysis Area. He said it was a method the state uses to distribute dispensaries across Arizona. He talked about the different CHAAs as shown on the aerial map of Arizona. He explained that in October of 2016, 31 new licenses were reallocated. He noted the difference between the licenses was that in 2012 the dispensaries can be go anywhere since it has been three years. However, the new 2016 licenses can only go to a CHAA they are assigned. He stated that was a very important consideration regarding this request. He said his applicant does not have the luxury to go anywhere they want in Glendale. They can only go in the very narrow and restricted area. He noted the Board should acknowledge this was a key consideration. He discussed the need for the dispensary in this immediate area and the restricted boundaries for the CHAA. Mr. Baugh discussed the main issue of this dispensary being in close proximity of a school. He presented indications that this was an online school, not an Elementary or High School. He said this school was not traditional and had no classroom or cafeteria. He noted the other school was behind a shopping center and not in-sight of each other with no activity that would link them together to give any concerns. Mr. Baugh also addressed why other sites that were recommended by staff will not work for them. He explained that no matter where they go they will need variances. However, he believes this was the best location that will work for everyone if given the opportunity. Additionally, he was not aware of any added crime or detrimental effect on an area with any of the current dispensaries in the Glendale area. Nevertheless, they do abide by security protocol in the area that is required by the state of Arizona. He argued that having a vacant building in the area posed more hazards that a marijuana dispensary that operates like a medical facility. Mr. Baugh thanked the Board for their time and patience in listening to his presentation. Vice Chair arra asked the Board if they had any questions. Board member Martinez wondered if the applicant had said he had another location and was trying to relocate here. Mr. Baugh said no. Board member Martinez asked about the online school and wondered how many students were enrolled. Mr. Baugh did not know. Board member Martinez inquired if they have computer labs at this location. Mr. Baugh said he did not know Board member Martinez said he knows that students come to those online school locations for testing. He said that parking lots at school sites often get turned into classrooms and that was a concern he had. November 9,2017 Board of Adjustment Minutes Page 5 Board member Martinez also questioned if the other two dispensaries in Glendale received variances. Mr. Baugh said he knew of one that did receive a variance but could not speak on the other one. However, they had to take it up to the superior court to prevail and receive the variance. Board member Deitzman asked how the building was constructed as far as security. Mr. Baugh stated that the building would comply with all regulatory requirements if their variance is approved tonight. He added the building itself is block not stucco. Board member Martinez asked how long the DVR's are stored for. Mr. Baugh said 30 days and can be accessed remotely. Board member Cheshier asked if there is any possibility of them selecting a site east of the requested building. Mr. Baugh stated they would also need variances there as well. He noted that everywhere they go down Bell Road,there is a neighborhood or school and that would require a variance. Board member Cheshier stated there was an opposition email saying there is a third school nearby but no one knew of one. Mr. Baugh said he was not aware of one either. Board member Cheshier said she was familiar with this area and noted that one of the schools would probably be expanding in the future. Vice Chair Zarra opened the public hearing. Mr. Phillip May representing LA Fitness said he was asked by other LA Fitness location owners to discuss the higher crime and theft these other LA Fitness locations have experienced when there are medical marijuana dispensaries nearby. Vice Chair Zarra asked for a rebuttal from the applicant representative. Mr. Baugh said he first wanted to thank the Board for their patience in his presentation. He realized he had talked a lot. He noted that as far as LA Fitness comments, he explained that there is no documentation of that and in addition, it does not have anything to do with the site in question. He said for all they know, he could not be talking about dispensaries in Arizona. He explained that because they are trying to avoid the clustering of dispensaries, this was the most appropriate location. In closing, he understands this was not a popular project or land use, however, he believes they do meet the test regarding the findings set before them tonight. Mr. Ritz reminded the Board that this is not a state mandated directive from the state, this variance was sought out solely by the client. He clarified that the CHAA extends to Peoria not just Bell Ave as stated earlier. He explained that staff views this dispensary more as a retail business then a medical office. He also clarified that students do attend the school so it was not strictly a computer online school. He said the school does have students visiting the campus for different functions. Staff stands by their recommendation of denial. Vice Chair Zarra closed the public hearing. November 9,2017 Board of Adjustment Minutes Page 6 Vice Chair Zarra asked the Board for any further questions or comments. Board member Martinez requested to go into Executive Session. Board member Martinez made a motion to go into Executive Session. Board member Deitzman seconded the motion, which was approved unanimously. The Board reconvened after Executive Session. There was no discussion from the Board. Vice Chair Zarra continued the meeting. Based on the facts and evidence presented, Mr. Romney requested a vote from the Board. He read each finding and waited as the Board responded. Finding One. Vice Chair Zarra called for a voice vote on Finding One. The Board responded with a 4-1 vote. (Martinez,Wilson, Cheshier, Zarra voted Aye) (Dietzman voted Nay). Finding Two. Vice Chair Zarra called for a voice vote on Finding Two. The Board responded with a 1-4 vote. (Zarra voted Aye) (Martinez,Dietzman,Wilson, Cheshier voted Nay). Finding Three. Vice Chair Zarra called for a voice vote on Finding Three. The Board responded with a 1-3-1 vote. (Cheshier Aye) (Dietzman, Wilson, Zarra, voted Nay) — (Martinez, abstained). Finding Four. Vice Chair Zarra called for a voice vote on Finding Four. The Board responded with a 0-5 vote. (Martinez,Wilson, Cheshier, Zarra,Dietzman voted Nay). Vice Chair Zarra called for a motion. BOARD MEMBER CHESHIER MADE A MOTION TO DENY THIS ITEM. BOARD MEMBER MARTINEZ SECONDED THE MOTION. THE MOTION TO DENY WAS APPROVED 3-2. (DIETZMAN, CHESHIER, ZARRA, VOTED AYE, MARTINEZ, WILSON, VOTED NAY) Vice Chair Zarra called for any final comments from staff. Deputy City Attorney Romney stated anyone wishing to appeal this action, will need to file a motion in Superior Court. Vice Chair Zarra called for the next order of business. OTHER BUSINESS FROM THE FLOOR November 9,2017 Board of Adjustment Minutes Page 7 There was none. PLANNING STAFF COMMENTS AND SUGGESTIONS There were none. NEXT MEETING: December 14, 2017 at 4:00 p.m. BOARD COMMENTS AND SUGGESTIONS There were none. ADJOURDMENT BOARD MEMBER DEITZMAN MADE A MOTION TO ADJOURN THE MEETING. BOARD MEMBER REGINALD SECONDED THE MOTION, WHICH WAS APPROVED UNANIMOUSLY The meeting adjourned at 5:45 p.m.