Tempe Board of Adjustment Meeting: February 24, 2016 – Appeal of Medical Marijuana Dispensary Denial
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Tempe Board of Adjustment Meeting: February 24, 2016 – Appeal of Medical Marijuana Dispensary Denial
The Board of Adjustment met on Wednesday, February 24, 2016, to consider an appeal by Healing Healthcare 3 Inc. (d.b.a. Swell Farmacy) of the Zoning Administrator's decision to deny a proposed medical marijuana dispensary at 111 South McClintock Drive. The applicant argued that the city's 500-foot separation requirement from residential zones created an unnecessary hardship and was unreasonable because the adjacent agriculturally-zoned property (owned by the Arizona Board of Regents) is encumbered by an APS easement and high-voltage power lines, making it impossible to develop for residential use. After hearing testimony, the board voted 4-3 to deny the appeal, upholding the Zoning Administrator's decision.
Consent Calendar
- Minutes Approval: The board unanimously approved the minutes from the November 25, 2015 meeting (study session and formal meeting minutes). Chair Jan Sell recused himself due to a conflict of interest; Vice Chair David Lyon presided for the remainder of the meeting.
Public Comments & Testimony
- Roy Grinnell (commercial real estate broker, Tempe resident, and medical marijuana cardholder) testified in support of the appeal. He stated that of the 13 locations originally approved by the city in 2011, only one remains viable today due to various restrictions, creating a scarcity of available sites. He argued that limiting dispensaries to two (as per the city's moratorium, though not applicable to this case) would reduce access for patients and drive up prices, potentially harming those who rely on medical marijuana as an alternative to opioids.
Discussion Items
- Appellant's Argument (Jeffrey Gross, attorney for Healing Healthcare 3): Gross argued that the Board of Adjustment, as a quasi-judicial body, has the authority to rule on legal challenges to zoning ordinances. He claimed that Arizona Revised Statutes (specifically ARS §9-462.01) do not grant cities the power to impose spacing requirements, and that the city's ordinance requiring a 500-foot separation from residential zones is unreasonable as applied to this property. He emphasized that the adjacent AG-zoned property, due to an APS easement and the presence of high-voltage power lines, can never be used for residential purposes. He also submitted evidence (a map and list) showing that extensive searches for alternative locations within Tempe proved fruitless due to overlapping separation requirements from churches, schools, parks, and other dispensaries, combined with federal and CC&R restrictions.
- Staff Response (Ryan LeVake, Deputy Director of Planning): LeVake explained that the city's ordinance was modeled after a template from the Arizona League of Cities, which included separation from residential zone districts (not just actual residential uses). He noted that the AG district is classified as a residential district under city code. He stated that the city approved 13 dispensary locations in 2011, but only two remain active due to state-imposed Critical Health Area (CHA) boundaries limiting Tempe to two dispensaries. He also noted that another location on Elliott Road, which is the applicant's existing cultivation facility, could have been used for a dispensary as it meets separation requirements.
- Board Deliberation: Board members raised questions about the reasonableness of the ordinance, the distinction between zoning classifications and actual use, the impact of the APS easement, and whether the applicant had adequately proven the impossibility of residential development. Some members expressed concern that overturning the ordinance would undermine city code, while others argued that the ordinance's intent (protecting residents) was not served in this case.
Key Outcomes
- Vote on Motion to Deny Appeal: A motion was made and seconded to affirm the Zoning Administrator's decision (i.e., deny the appeal). The board voted 4-3 in favor of denial. Voting to deny the appeal: Kevin Collins, David Ryan, David Nagel, and John Puzakas (as identified by the names in the transcript and based on the chair's summary). Voting against the motion (in favor of the appeal): Albert Dare (alternate), Jack Confer (alternate), and possibly others; the transcript notes three votes in the negative: “commissioner board member Collins, casual and confer” – this appears to be a misstatement; actually Collins voted with the majority. Based on the roll-call description: the motion passed 4-3, with three opposing (likely Dare, Confer, and one other). However, the chair stated: “commissioner board member Collins, causal and confer in the negative.” Given earlier Collins said he would vote for the appeal, and the chair’s naming may be garbled. The clear outcome is 4-3 to deny the appeal, upholding the Zoning Administrator’s decision.
- Result: The appeal was denied; the medical marijuana dispensary at 111 South McClintock Drive will not be permitted.
Meeting Transcript
Good evening. My name is Jan Sell. I'm the chair of the Board of Adjustment for the City of Tempe, and I'd like to call the February 24th, 2016 meeting to order. The Board of Adjustment is authorized by Arizona revised statutes in the City of Tempe zoning ordinance. Its function is to grant relief where a literal enforcement of the zoning ordinance would result in an unnecessary property hardship to interpret provisions of the zoning ordinance and to hear appeals from any person or city official aggrieved by the decision of a person responsible for the enforcement of the zoning ordinance. The board has the City of Tempe community development staff summary reports on the items being considered at this meeting, and we'll use this report in their deliberations. All applicants and interested citizens, when your request is called, or when you wish to address the board, please make sure that you have filled out one of the citizens' request forms located on the table in the back of the room. Then step to the microphone and state your name and address. Please submit the white form to the staff member before you begin speaking at the microphone. Now I'd like to introduce the city staff that's in attendance, Steve Aburnson, and then Ryan Leveski and Diane McGuire. And as far as the board members, I believe everyone is present except Richard Dalton. Is that correct? So I am here, Jan Sell, Kevin Collins, David Ryan, Richard Castle, David Nagel, and John Puzakas. And we have alternates Albert Dare and Jack Confer. The first order of business is to approve the minutes of the November 25th, 2015 meeting. I'm sure that everyone's had an opportunity to read those. Is there any discussion regarding such minutes? They'll entertain a motion to approve the minutes. I move to approve. Okay, it's been moved by Mr. Cagle. What is it? I get this upside down here. Moved by Mr. Nargle and second by Mr. Zukat, this amendments be approved as written. All those in favor say aye. Aye. Well, it's been approved unanimously. The first order of business concerns a uh appeal which I have a con. I need to point out that I have this. Okay. So please note the record that uh Mr. Lyons abstained from the vote. The first order of business I have a conflict with, so I'm going to refuse myself and turn the meeting over to Mr. Lyon. I'd like to thank Mr. Sell for beginning our meeting for us, and we'll go ahead and uh address our first case, which will be case PL 150524. Uh there we are. And in this matter, I'd like to go ahead and call our appellate forward and he can address us. Thank you, Mr. Chairman, members of the board. My name is Jeffrey Gross. I'm with the law firm of Gallagher and Kennedy. My address is 2575 East Campbellback Road, Phoenix, Arizona. Um I am here representing Healing Healthcare 3, which was the applicant for a zoning clearance for medical marijuana dispensary. We've we are here appealing a zoning administrator decision uh that the dispensary the location is located too close to a residential zone. First of all, I guess a question of order, am I subject to any time limitations? No. Thank you.
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