This is a request for City Council to hold a Public Hearing to consider an appeal of the Planning & Zoning Commission's decision on September 29, 2016 to approve a Conditional Use Permit for Saguaro Sky Medical Marijuana Dispensary located at 9240 W. Northern Avenue, Suite 103A.

The City received one (1) letter in opposition to the request. On September 29, 2016, the Planning & Zoning Commission held a public hearing and voted to approve the Conditional Use Permit. There were no speakers present in opposition to the case.  The appellant to the Planning & Zoning Commission decision had not previously opposed the case and was not present at the public hearing. 

Background

The applicant, Andy Workman, is proposing to open and operate a 1,580 square foot medical marijuana dispensary within an existing in-line suite located within the Peoria Crossings shopping center.  Peoria Crossings is anchored by Target and Kohl’s and is located along the northwest corner of 91^st Avenue and Northern Avenue, along Peoria’s southernmost boundary.  A medical marijuana dispensary is a conditionally permitted use within the Peoria Crossings Planned Area Development (PAD) which refers back to the approved list of uses within the Intermediate Commercial (C-2) zoning district.  The PAD does not prohibit any uses allowed within the C-2 zoning district.

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 2.3 miles away from the subject property. (Exhibit 1)

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 Planning and Zoning 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.  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 one (1) medical marijuana dispensary operating west of the southwest corner of 91^st Avenue and Peoria Avenue.  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.

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 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.

Planning and Zoning Commission Public Hearing (September 29, 2016)

On September 29, 2016 the Planning and Zoning Commission unanimously approved (6-0) a Conditional Use Permit (CUP) for the medical marijuana dispensary.  The Security Management Narrative and Plan were reviewed by the Peoria Police Department.  One email of opposition was received six (6) weeks after the initial application submittal.  The opposition, a property owner within the Peoria Crossings shopping center, did not feel that a dispensary met the character of the surrounding center.  All requirements set forth in the Zoning Ordinance concerning the proposed use had been met, as shown in the attached Planning and Zoning Commission report (Exhibit 2) including ensuring proper land use compatibility. 

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 appellant’s concern was in regards to the close proximity of the existing medical marijuana dispensary, this proposed medical marijuana dispensary, and a third medical marijuana dispensary proposed at the southwest corner of 91^st Avenue and Olive Avenue (CU16-0009).  The appellant did not raise concerns during the review process and was not present for the Planning and Zoning Commission meeting.  Pursuant to the Zoning Ordinance, dispensaries are required to be a minimum of 2,640 feet away from another dispensary to prevent any perceived proliferation.  All three locations meet this requirement (Exhibit 3).  

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.

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: Modify 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 Saguaro Sky Medical Marijuana Dispensary located at 9240 West Northern Avenue, Suite 103A.

If the decision to approve the CUP is upheld, the future dispensary would be required to obtain all State of Arizona (Department of Social and Health Services) approvals therein and obtain any necessary local tenant improvement (TI) building permits.