City Council
MEETING DATE: 1/12/2015
TITLE:
Title
Appeal of Planning Commission Determination of Incompleteness on Conditional Use Permit Application for Green Connect/PSO Medical Marijuana Dispensary located at 36-777 Sunair Plaza in Cathedral City
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FROM:
Nicholas Hermsen, Deputy City Attorney
RECOMMENDATION:
Recommendation
The City Attorney's office recommends that the City Council hear an appeal of the decision of the Planning Commission determining that the Dispensary Conditional Use Permit application was incomplete and then affirm the decision of the Planning Commission.
Body
BACKGROUND:
A. The Newly Enacted Ordinance and Planning Commission Determination
The City Council recently enacted a new ordinance which allows three medical marijuana dispensaries to open and operate in the City, subject to a Conditional Use Permit ("CUP"). (The full ordinance is found at Cathedral City Municipal Code ("CCMC") chapter 9.108). Under the ordinance, a deadline was established to submit a CUP application to the City, after which a lottery was held to determine in which order the applications would be processed. A total of 24 applications were received, the lottery was held, and each of the applications has been ranked.
The instant application for Green Connect/PSO is for the third-ranked application under the lottery. The proposed location is 36-777 Sunair Plaza. The matter was considered by the Planning Commission on November 5, 2014, which determined that the proposed application was incomplete because the proposed location is less than 250 feet from East Palm Canyon Drive, which is prohibited by CCMC section 9.108.060(A).
The administrative record for the Planning Commission meeting is attached to this staff report, including: (a) The Planning Commission Staff Report; (b) The application; (c) a map showing the distance of the proposed location from East Palm Canyon Drive; (d) The Planning Commission Agenda; and (e) The Planning Commission's minutes.
The ordinance includes several criteria which can automatically disqualify a particular applicant. For example, dispensaries are not permitted to be located within 600 feet of a school, public playground or park, child care or day care facility, or youth center; within 1,000 feet of any other dispensary; in any residential zone; or within 250 feet of East Palm Canyon Drive or a residential zone. If any dispensary's proposed location violates these distance requirements, under the ordinance the application must be deemed incomplete and the next application on the list is considered. No variances or other exceptions are permitted under the ordinance with respect to these particular standards.
B. The Application
Pursuant to CCMC Section 9.108.080(B), the Planning Commission has the decision-making authority to find whether an application is in compliance with Chapter 9.108. A decision of the Planning Commission on the completeness of the application may be appealed to the City Council pursuant to CCMC section 2.04.100. The subject appeal was timely filed by the applicant's attorney, James DeAguilera, pursuant to CCMC section 2.04.110. A copy of the appeal is attached. The City Council review of this matter is de novo.
Staff has conducted its initial review of the application materials and determined that the proposed facility is within 250 feet of East Palm Canyon Drive, which is in direct violation of CCMC section 9.108.060(A).
CCMC section 9.108.060(B) provides: "All distances specified in this Section shall be measured in a straight line, without regard to intervening structures, from the nearest point of the building or structure in which the Medical Marijuana Dispensary is, or will be located, to the nearest property line of those uses described herein."
Planning staff has measured the distance from the nearest portion of the structure where the proposed dispensary would be located to East Palm Canyon and determined that the distance is fewer than 250 feet.
C. The Appeal
The appeal was received by the City on December 23, 2014, and is attached. The grounds for the appeal is that the applicant intends to amend its application to change the address for the proposed dispensary to 68031 Ramon Road, #207.
CCMC section 9.108.070 provided for a lottery to be conducted to determine the order in which applicants would be considered. The lottery was held on September 23, 2014. The ordinance which enacted the scheme clearly set forth the distance and other requirements and limitations. The rule requiring dispensaries to be at least 250 feet from East Palm Canyon is a clear bright line rule. The means for measuring the distance is also clearly set forth in the ordinance, and the distance of the original proposed location and its violation of the distance requirement does not appear to be in dispute and is not referenced in the appeal.
To allow an applicant, upon determination that its proposed location violates the ordinance, to then amend its application to another location violates the intent and spirit of the ordinance. The ordinance requires the application to be complete prior to the its submission, prior to the lottery. Any attempt to change the location would clearly constitute the submission of a new application long after the deadline. Allowing this to occur would not only be contrary to the ordinance's plain language, but prejudicial to other applicants who properly adhered to the City's procedures and requirements. For this reason, the recommendation is to affirm the Planning Commission's determination.
D. Appeal Procedures
The process for hearing the appeal is typically a summary of the situation by staff followed by testimony of the appellants. Following that testimony the City Council should take comment from those in attendance. Following the hearing the City Council will take action on the appeal. The City Council has several options in relation to the appeal:
1. The City Council may affirm, in whole, the decision of the Planning Commission.
2. If the City Council finds that new or additional information has been discovered in the appeal process that may result in the Planning Commission reaching a different conclusion, the City Council may remand the matter back to the Planning Commission with direction to consider the new or additional information.
3. The City Council may reverse the decision of the Planning Commission and vacate its determination of incompleteness on the application, and remand the application to the Planning Commission for further proceedings consistent with CCMC chapter 9.108.
4. The City Council may modify the determination of the Planning Commission however it deems fit.
RECOMMENDED ACTION:
The item that is before the City Council is an appeal on the determination of incompleteness on the Application, and not the actual CUP. Because the Application does not comply with the terms of CCMC Section 9.108.060(A), the Planning Commission's decision should be affirmed.
DISCUSSION:
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FISCAL IMPACT:
None
ATTACHMENTS:
1. Planning Commission Staff Report for Green Connect/PSO
2. Conditional Use Permit Application for Green Connect/PSO
3. Map of Distance of Proposed Location from East Palm Canyon
4. Planning Commission Agenda for November 5, 2014
5. Minutes of the November 5, 2014 Planning Commission Meeting
6. Appeal of Green Connect/PSO Planning Commission Action