This is a request for City Council to hold a Public Hearing to consider an appeal of the Planning and Zoning Commission’s decision on September 29, 2016, to approve a Conditional Use Permit allowing the operation of a medical marijuana dispensary within a proposed 2,000 square foot building.

Prior to the Planning & Zoning Commission Public Hearing, the City had received two (2) letters of opposition. Subsequent to the required neighborhood meeting, one of the opposing parties rescinded its opposition. There were six (6) speakers from the public in favor and none opposed at the September 29, 2016 Planning & Zoning Commission Public Hearing. The appellant to this decision had not previously opposed the case and was not present at the 9/29/16 Public Hearing.

The subject property is undeveloped with the exception of the southern portion of the property, which contains a wireless communication facility (WCF) and paved parking area.  The site is approximately 1.03 acres in area and located at the southwest corner of 91st Avenue and Olive Avenue. The property is zoned Intermediate Commercial (C-2), which requires the issuance of a Conditional Use Permit (CUP) for a medical marijuana dispensary.

On September 29, 2016, the Planning and Zoning Commission approved a Conditional Use Permit to allow the operation of a medical marijuana dispensary within a proposed 2,000 square foot building.  All requirements set forth in the Zoning Ordinance concerning the proposed use have been met, as shown in the attached Planning and Zoning Commission report (Exhibit A).

Pursuant to Section 14-39-12.H of the Zoning Ordinance, any member of the public, including the applicant, may appeal a decision of the Planning and Zoning Commission, regarding a Conditional Use Permit, to the City Council.  Such appeal must be filed within 15 calendar days of the date of the hearing with the Planning and Community Development Department. Staff has received one letter of appeal from a resident located approximately 7,464 feet (a little less than a mile and a half) away from the subject property (Exhibit B-C).

When a Planning and Zoning Commission decision is appealed, the City Council makes the final determination to either reverse, modify or affirm the decision.  The Council shall base its decision on the written findings previously issued by the Commission, applicable law, the review criteria stipulated below: 

CUP Decision Criteria (14-39-12.E)

1. Whether the use is designated as a permitted Conditional Use within the zoning district in which the property is located.
2. Whether the use meets the locational and development standards provisions, as applicable for the Conditional Use Permit, for the zoning district in which the property is located.
3. Whether the use is consistent with the goals, policies, and intent of the General Plan and any adopted Specific Plan applicable to the site where the proposed use is located.
4. Whether the use is consistent with documentation and recommendations provided by reviewing City Departments.
5. Whether the use complies with all applicable city codes, standards, and guidelines governing such use.
6. Whether the use will be materially detrimental to the health, safety, or general welfare of persons residing or working in the vicinity of the property, to the neighborhood, or to the public welfare; or if the use will unreasonably interfere with the use and enjoyment of nearby properties. Consideration shall include, but not be limited to the following factors:

a. Damage or nuisance arising from noise, smoke, odor, dust, vibration, or illumination;

b. Impact on surrounding areas resulting from an unusual volume or character of traffic;

c. Ingress and egress to the property and proposed structures;

d. Pedestrian and vehicular circulation with particular reference to fire protection;

e. Parking and loading; and

f. Impact on public services, including schools, utilities, and recreation.

The City and the Planning & Zoning Commission has found that the proposal adheres to the CUP decision criteria.  If Council reverses or modifies the decision of the Commission, the Council shall direct the City Attorney to prepare written findings setting forth the basis for the reversal or modification. 

State Regulations

As outlined in the report and presentation to the Commission, Proposition 203 was passed on November 2, 2010, authorizing the use, sale, and cultivation of medical marijuana in Arizona.  On April 14, 2011, the Medical Marijuana Act went into effect, which allowed one-hundred twenty-six (126) possible registration certifications for dispensaries throughout the state.  The total number of certificates authorized was based on the number of pharmacies within the State.  For every ten (10) licensed pharmacies, one (1) medical marijuana dispensary was allowed. The Arizona Department of Health Services (ADHS) limited the number of registered dispensaries according to geographic regions referred to as Community Health Analysis Areas (CHAA).  One dispensary was permitted within each CHAA.  A random selection process was used if more than one (1) application was received for a CHAA.  After the first three (3) years of receiving their registration certification, a dispensary may move anywhere within the state, regardless of the one dispensary per CHAA quota.

The City of Peoria currently lies within three (3) different CHAAs: #38 Maricopa Co. N, #39 Wickenburg, and #41 Peoria. The CHAA referred to as #41 Peoria contains a majority of the City and currently has a medical marijuana dispensary operating west of the southwest corner of 91st Avenue and Peoria Avenue (near Home Depot).  This dispensary received approval for a Conditional Use Permit through the Planning and Zoning Commission on April 18, 2013.  This has been the only operating medical marijuana dispensary within the City limits to date.

For the first time since the initial calculation, the number of pharmacies within the State has been re-evaluated and there are now thirty one (31) new dispensary registration certificates available.  CHAAs will remain as-is and the disbursement of the dispensaries within the CHAAs will be based on the areas with the most registered patients.  The CHAA referred to as #41 Peoria is currently ranked number seven (7) on the priority list for another dispensary. 

The Medical Marijuana Act also authorizes cities the ability to enact reasonable zoning regulations that limit the use of land for registered nonprofit medical marijuana dispensaries and cultivation.  The City’s current medical marijuana regulations require a Conditional Use Permit and additional limitations that include distance and operational requirements, along with strict security measures.  The proposal does meet all rules and regulations pertaining to medical marijuana dispensaries set forth by the Zoning Ordinance.

Outreach Requirements

Section 14-39-6 of the Zoning Ordinance requires a Notice of Application and Notice of Hearing to be provided to each owner of real property within six hundred (600) feet of the subject site, along with home owner association’s within one (1) mile, along with publication in the Peoria Times and on-site posting.

Support / Opposition

Opposition was received from South Peoria Baptist Church, which is located approximately 390 linear feet away, property line to property line.  They are opposed to the use of marijuana, which they see as a ‘pathway’ drug.  Opposition was also received by the Westgreen Townhouses Association, which is located approximately 530 linear feet away, property line to property line.  The main concerns of the association were the increase in crime and traffic to the immediate area due to the proposed use.

A neighborhood meeting was held in accordance with Section 14-36-12.F by the applicant on July 26, 2016, at the Peoria Public Library.  One member of the public was in attendance.  There was no opposition or concerns given by the public at this meeting.  The Westgreen Townhouses Association representative was not able to attend the neighborhood meeting; therefore a special meeting was held at the townhomes’ clubhouse on August 3, 2016, to include the representative, the applicant, and staff.  By the conclusion of the meeting, the townhomes’ representative was no longer opposed and later formally retracted their opposition.

On the day of the Planning and Zoning Commission hearing, the applicant was present, along with numerous medical marijuana cardholders who spoke in support of the proposed use at the subject property.  There were no attendees in opposition at the meeting.  The Commission examined staff analysis and gave consideration to public testimony regarding this proposal.  Based on the findings presented, the Commission voted unanimously to approve the requested Conditional Use Permit to Conditions 1-7 as contained in the staff report.

Appeal of Planning & Zoning Commission Action

Staff received one letter of appeal of the Planning and Zoning Commission’s decision to approve this request in accordance with Section 14-39-12.H.  The concern raised is the close proximity of the existing medical marijuana dispensary, this proposed medical marijuana dispensary, and a third medical marijuana dispensary proposed at 9240 W Northern Avenue (CU16-0015).  Dispensaries are required to be a minimum of 2,640 feet away from another dispensary, per the Zoning Ordinance.  All three locations meet this requirement (Exhibit D). 

This request has been subject to the City’s Conditional Use Permit process according to Section 14-39-12 of the Peoria Zoning Ordinance.  A public hearing was held for this item at the September 29, 2016 Planning & Zoning Commission Meeting. The Commission unanimously approved this request with a 6-0 vote, subject to Conditions 1-7 as contained in the staff report. The meeting minutes are provided in Exhibit E.

Based upon written findings previously issued by the Commission, applicable law and the review criteria stipulated in the Zoning Ordinance, the City Council may:

A:        Affirm the Planning & Zoning Commission's decision; or

B:        Affirm the Planning & Zoning Commission's decision making findings setting forth the basis for the modification and directing the City Attorney to prepare such findings in writing; or

C:        Reverse the Planning & Zoning Commission's decision, making findings setting forth the basis for the reversal and directing the City Attorney to prepare such findings in writing; or

D:        Continue action to a date certain or indefinitely.

If the City Council reverses or modifies the decision of the Commission, the Council shall direct the City Attorney to prepare written findings setting forth the basis for reversal or modification.

Discussion and possible action to affirm, reverse, or modify the Planning and Zoning Commission’s decision to approve a Conditional Use Permit for a medical marijuana dispensary located at the southwest corner of 91st Avenue and Olive.

No further action would be necessary.