Board of Adjustment Meeting: Reconsideration Granted for Medical Marijuana Dispensary (April 27, 2016)
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Board of Adjustment Meeting – April 27, 2016
The Tempe Board of Adjustment met on April 27, 2016, primarily to consider a request for reconsideration of its February 24, 2016 decision to deny an appeal regarding a proposed medical marijuana dispensary at 111 South McClintock Drive. The board voted to grant reconsideration based on an alleged conflict of interest involving a board member, setting a new hearing for May 25, 2016.
Consent Calendar
- Meeting Minutes (February 24, 2016): Unanimously approved with one abstention from a member who missed most of that meeting.
Discussion Items
- Request for Reconsideration (PL150524): The applicant, Jeffrey Gross (represented by Mark Fuller of Gallagher & Kennedy), sought reconsideration of the February 24 denial. Mr. Fuller argued that Board member David Lyon had a conflict of interest because his firm (Cotelus) served as master developer for Arizona State University properties across the street from the proposed dispensary location. He claimed Mr. Lyon’s comments at the prior meeting (likening the dispensary to an adult entertainment business and stating the APS easement could allow residential-type uses) created an appearance of partiality, violating due process requirements for a quasi-judicial body. The applicant had also filed a special action in Superior Court to preserve the right to judicial review but stated that a fair rehearing could moot the lawsuit.
- Board members questioned the applicant on the legal standards for reconsideration—specifically the need to show both a mistake and hardship or delay. Mr. Fuller contended that a conflict of interest inherently voids a decision, independent of a typical motion for reconsideration. He noted that the 4–3 vote made the alleged conflict material and that the lawsuit added delay but did not prevent the board from granting reconsideration.
- Staff clarified that if reconsideration were granted, the merits hearing would be held before the full Board of Adjustment at the next available date.
- Board member Dalton participated as acting chair after chairman Sell recused himself due to a conflict. The board discussed the APS easement and the nature of the zoning, but the chair limited discussion to the reconsideration criteria.
Key Outcomes
- Motion to Grant Reconsideration: Made by board member Noggle, seconded by an unidentified member. The motion passed with a vote of 4 in favor and 0 opposed (the exact tally was not stated but described as passing). The board found that the alleged conflict of interest constituted a potential mistake and that the need to avoid further litigation represented a hardship or delay.
- The reconsideration hearing on the merits of the dispensary appeal was scheduled for May 25, 2016.
- The applicant’s special action lawsuit in Superior Court remained filed but could be withdrawn if the rehearing resolves the matter.
Meeting Transcript
Good evening. My name is Jan Sell, and I would like to I'm chairman of the Board of Adjustment, and I'd like to call the April 27th, 2016 meeting to order. First, I would like to read a statement regarding the board and what it does. The Board of Adjustment is authorized by the Arizona revised statute and the City of Tempe zoning ordinance. Its function is to grant relief where a little 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 will use this uh report and their decisions and deliberations. All applicants and interested citizens when your request is called or you when you wish to address the board. Please make sure that you have filled out one of the citizens' request forms located in the back table. Then step to the microphone and state your name and address. Please submit the please submit the white forms to the staff members before you begin speaking at the microphone. First of all, I'd like to introduce the staff, the uh Steve Abramson Planning and Zoning Coordinator. Then uh Ryan Lavik is the uh deputy community development director, and Diane McGuire is the admin right administrative assistants. Um the uh board members present this evening. If you want to um just announce your names, we'll go through it and go from there. I'm Richard Cause Kevin Collins, Richard Dalton, Albert Dair, John Pazoskis, uh David Noggle. I'm Jan Sell and absent today is uh Richard Dalton. Actually, I'm sorry, Richard right there. David Lyon, correct? Sorry, Richard. Sorry. Note the con the uh concurring vote of four members of the board is necessary to approve any application. Therefore, applicants this evening have the option to proceed or ask for continuance to the next regular scheduled meeting. I think we're okay there. The first order of business then would be to approve the minutes of the February 24th, 2016 um meeting minutes. I make a motion to approve the minutes. It was moved by Mr. Dalton and second by Mr. Dare that the minutes be approved. All those in favor say aye. Aye, aye. I will substain because abstain from voting because I wasn't there for most of the meeting. So it passes with my one abstention. The first case is a request for reconsideration of the board of adjustment decision on February 24th to deny the appeal and uphold the zoning administrator's decision to deny the proposed medical marijuana dispensary located at 111 South McClintock Drive for healing health care free Inc. Uh doing business as swell pharmacy. The applicant is Jeffrey Gross of Gallagher and Kennedy, and for the record, I'm gonna recuse myself because I have a conflict. And that the uh Mr. Chair, and that the uh vice chair is not in attendance this evening. That's me, I I'm here. Okay, I'm the vice chair. Sorry. So we'll do some trading places here. Okay. Leave the room. I'd like to announce that uh Mr. Confer is uh here sitting on the board tonight as well in place of uh Mr. Sell. So uh we're here tonight for a request for reconsideration of the board's decision on February 24th to deny the appeal upheld by the uh zoning administrators decision to deny proposed medical marijuana dispensary located at uh 11 South McClink Talk Tribe, Healing Health Inc. doing business as uh small pharmacy. Um the applicant is uh Mark Fuller of Gallagher and Kennedy.
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