Tempe Board of Adjustment Meeting – November 28, 2018

The Tempe Board of Adjustment met on November 28, 2018, at 1:00 PM to consider approval of prior meeting minutes and two variance requests related to medical marijuana facilities. The board first unanimously granted a continuance for a dispensary appeal due to a medical emergency, then denied a variance for a cultivation facility after hearing testimony from the applicant, staff, and neighboring property owners. The meeting adjourned with recognition of outgoing board member John Pazaskis.

Consent Calendar

• Meeting Minutes (May 23, 2018): Approved 6-0, with board member Albert Adair abstaining. Minor revisions were made prior to approval.

Public Comments & Testimony

• Appellant's Representative (PL180173): Attorney Lawrence Felder requested a continuance to January 23, 2019, citing an emergency surgical procedure for the principal, John Vatistis. Three parties who had filed written opposition (Emerald, Ellen R. Peters Investments, Robert Cox) expressed non-opposition to the continuance.
• Applicant Gerald Johnson (PL180158): Owner of the property at 1840 East University Drive, Johnson explained his wish to operate a medical marijuana cultivation facility in the north half of his building. He stated that the church to the west (637 S McClintock) had no objection, and that he had collected signatures from 31 surrounding businesses supporting the use. He emphasized security measures and odor control via carbon filtration.
• Adam Carr (Sea of Green Hydroponics): Consultant for the applicant, testified that odor can be eliminated through oversized carbon filters and ozone generators, and that he had never heard of a security breach at a cultivation facility.
• Jennifer Corey (Planner for adjacent property owner): Represented the Sixth Street Commerce Center to the north. She argued the applicant’s site has no unique hardship; many other properties meet the separation requirements. She noted the church pastor and a neighboring business had reservations. She also pointed out the residential area across University Drive has approximately 40 units within 500 feet.
• Dominic Mignoni (Co-owner, Sixth Street Commerce Center): Opposed the variance, citing security concerns due to the 60-foot proximity between buildings, poor visibility, potential razor wire, and risk to his 18 tenants. He noted the building’s access points have external hinges and that the block wall could be breached.
• Todd Smith (Co-owner, Sixth Street Commerce Center): Added photos showing the close distance and argued the facility would create a prison-like appearance and deter tenants. He stated the current building is fully leased and well-maintained.

Discussion Items

• Continuance Request (PL180173): The board discussed the medical emergency and the written request. All members agreed it was reasonable. Motion to continue to January 23, 2019 passed 7-0.
• Variance Request for Cultivation Facility (PL180158): Staff (Karen Stovall) presented that the site fails two separation requirements: 1,320 feet from a religious worship facility (currently zero) and 500 feet from a residential zone (currently 281 feet). Staff recommended denial, stating no special circumstances exist; the lack of street frontage is common, and financial hardship does not qualify. The applicant argued the building is secluded and difficult to lease. Board members questioned the criteria: special circumstances, self-imposed hardship, special privilege, and whether strict code enforcement denies a common privilege. Public testimony reinforced that the site is not unique and that granting the variance would set a precedent.
• Board Deliberation: Chair Lyon and members Frazy, Cullins, Baker, Watson noted that the church and residences existed before the applicant’s plans, that other properties have met the requirements, and that approving the reduction to zero feet would grant a special privilege not available to others. Board member Adair dissented, questioning the church’s zoning (staff confirmed it is permitted). Motion to deny the variance passed 6-1.

Key Outcomes

• Minutes (May 23, 2018): Approved 6-0 (Adair abstaining).
• Continuance for Appeal (PL180173): Granted unanimously (7-0) to January 23, 2019.
• Variance Denial (PL180158): Denied 6-1 (Adair dissenting). Staff noted the applicant may appeal to Maricopa County Superior Court within 30 days.
• Board Announcement: Recognized board member John Pazaskis for his six years of service (two terms).