Board of Adjustment Meeting: Medical Marijuana Dispensary Appeal Denied (Oct 25, 2017)
STREAMING COPY IN PREPARATION — RECORDING AVAILABLE FROM THE ORIGINAL SOURCE
Board of Adjustment Meeting - October 25, 2017
The Tempe Board of Adjustment convened on October 25, 2017, to hear an appeal by Sacks Tierney P.A. on behalf of Parc Dispensary (Image Productions LLC) regarding the zoning administrator's denial of a use acceptance for a medical marijuana dispensary at 8611 South Priest Drive, Suite 102 (Unit 104). The board voted to deny the appeal, upholding the zoning administrator's decision. The minutes from the September 27, 2017 meeting were approved with one abstention.
Consent Calendar
- The minutes of the September 27, 2017 meeting were approved unanimously. Board member Kevin Collins abstained as he was not present at that meeting.
Public Comments & Testimony
- Appellant (Philip Rudd and Janet Jackham, Sacks Tierney P.A.): Argued that all three grounds for denial were incorrect: (1) the Lifetime Fitness child care facility is not a true child care facility under state law (parents must stay on premises, limited hours, not taxed as such) and even if it were, the distance (1,933 feet or 1,534 feet per Google Maps) exceeds the 1,500-foot requirement; (2) the San Sonoma apartments are zoned MU3 (mixed-use) and not "solely devoted to residential use," and distance measurements (1,753 feet or 3,745 feet) exceed the 1,320-foot requirement; (3) the existing 2015 use acceptance for Natural Herbal Remedies confers vested rights to the property owner, and the city should not deny a new application based on it. They requested the board overturn the denial.
- John Batistas (Image Productions LLC): Stated he entered into an agreement with the condo association to only operate a medical (not recreational) dispensary. He argued that the city's rule changes are unfair, noting he spent significant money on improvements based on prior approvals and that the city's actions effectively zone out all medical marijuana dispensaries. He also questioned the reasonableness of the ordinance.
- Edward O'Brien (Travis Law Firm, representing Warner Village Office Condominium Association): Opposed the appeal, stating that the proposed use violates the CC&Rs (currently in litigation), that the dispensary is a retail use not permitted in professional office space, and that it would cause traffic and security issues. He requested the board deny the appeal.
- Letters of opposition from Total Wine & More and the owner of the Emerald Center properties were noted by staff.
Discussion Items
- Zoning Administrator's Decision (presented by Steve Abrahamson and Orion LeVake): The denial was based on three separation requirements under the current (June 2017) ordinance: (1) Proposed dispensary is within 1,500 feet of a child care facility (Lifetime Fitness, which has a state child care license); staff measured 1,430 feet property line to property line. (2) Within 1,320 feet of a parcel solely devoted to residential use (San Sonoma apartments); staff measured 890 feet. (3) An existing use acceptance for Natural Herbal Remedies (approved December 2015 under different requirements) remains unexpired and non-transferable, precluding a second approval for the same unit. Staff argued the measurement method is property line to property line, not midpoint, and that the distances are well within the required separations.
- Board Deliberation: Board members discussed the validity of the distance measurements, the nature of the child care facility, the definition of "solely devoted to residential use," and whether the 2015 use acceptance constituted a vested right. Several members expressed that the city's measurements appeared correct, that Lifetime Fitness is a licensed child care facility, and that the use acceptance was specific to Natural Herbal Remedies and not transferable. The appellant's argument that the property had vested rights was countered by the original letter's clause requiring new applications for different entities.
- Vote: A motion to deny the appeal and uphold the zoning administrator's decision was made and seconded. The motion carried with 4 votes in favor and 1 opposed (Kevin Collins dissented). The appeal was denied.
Key Outcomes
- Decision: The Board of Adjustment denied the appeal of Parc Dispensary, upholding the zoning administrator's denial of the use acceptance for the medical marijuana dispensary at 8611 South Priest Drive, Suite 102 (Unit 104).
- Vote: 4 in favor (David Lyon, James Frazy, John Pazalkis, David Noggle) and 1 opposed (Kevin Collins). Richard Casal's vote is not clearly recorded; the transcript suggests he may have voted in favor or abstained. The motion carried.
- Rationale: The board found that the proposed location violated current separation requirements (1,500 feet from a child care facility and 1,320 feet from a residential use) and that the existing use acceptance was not transferable to the appellant. No further action was taken.
Meeting Transcript
Good evening. Welcome to the City of Tempe's Board of Adjustment Meeting for Wednesday, October 25th, 2020. 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 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 agreed 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 item being considered at this meeting and will use the report in their delivery deliberations. All applicants and interested citizens when your you are when your request is called or when you wish to address the board, please make sure you have filled out one of the citizens' request forms located on the table in the back of the room. Step up with a microphone and state your name and city of residence. Please submit the white form to a staff member before you begin speaking into the microphone. I'd like to first introduce our staff members from the city of Tempe. On the end is uh Steve Abrahamson, and then in the middle is Orion Levake, and to his left is Diane McGuire. My name is Jan Cell. I'm chairman of the the board, and um I think what we'll do now is do a roll call. So David Lyon here James Frazy here John Pazalkis here David Nogle Richard Casal here and Kevin Collins here first order of business would be to approve the minutes of the September 27th, 2017 meeting minutes. The minutes have been presented in the packet. Is there any um discussion corrections of the minutes? Then I'll entertain a motion to approve the minutes of the meeting, Mr. Chair. I move that we approve the meeting minutes for the meeting dated September 27th, 2017. Second. Who is the second? Okay. It was uh moved by Mr. Lyon and second by Mr. Frazy that the minutes be approved as written. All those in favor say aye. Aye. Aye. And I will abstain because I was not at the meeting. The um first case tonight, and the only case tonight is to request an appeal of the zoning administrator's decision to deny the proposed medical marijuana dispensary located at 8611 South Priest Drive, suite 102, Unit 104 for part dispensary. Case PL 170260. The appellant is Sachs Tierney PA. Um, is there someone from Saks Tierney to come forward, state your name and address for the record? Actually, gonna be me. Uh oh, I'm sorry. Good evening, Chairman Cell, members of the Board of Adjustment. The case before you tonight is a request to appeal the hearings. I'm sorry, the uh got me going on this. The uh zoning administrator's opinion of August 30th, 2017. This uh request was for an administrative review of the proposed uh medical marijuana facility at 8611, South Priest Drive. It's in the PCC 1 zoning district. Uh essentially it's located at the northeast corner of Warner Road and Priest Drive. Uh the applicant uh the the application was made on August 14th of 2017, and the letter of denial of the request was made. The decision was made on August 30th. I take that back. The I have this backwards. The uh the decision was was made, the determination was made on August 30th, and it was uh applied for on the 14th of August. Uh subsequently, within two weeks, we received the request for an appeal of the decision. Uh the request or the decision was based upon three items. Firstly, there was a uh dispensary that was approved previously at this location. Uh must state that this was under different separation requirements at the time.
openpublica.com