City Council
MEETING DATE: 1/12/2015
TITLE:
Title
Appeal of Planning Commission Determination of Incompleteness on Conditional Use Permit Application for Sunshine Coast Wellness Medical Marijuana Dispensary located at 68-031 Ramon Road 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 Sunshine Coast Wellness is for the fifth-ranked application under the lottery, and was considered after the Planning Commission took other action on certain higher-ranked dispensaries. The proposed location is 68-031 Ramon Road. The matter was considered by the Planning Commission on December 17, 2014, which determined that the proposed application was incomplete because the applicant did not submit a detailed floor plan, which is required by CCMC section 9.108.080(B).
The entire administrative record for the Planning Commission meeting is attached to this staff report, including: (a) The Planning Commission Staff Report (both the initial staff report and a revised staff report); (b) The application; (c) a floor plan submitted to the City on October 9, 2014; and (d) The Planning Commission Agenda. At the time of the preparation of this staff report (December 30), the Planning Commission's minutes for its December 17, 2014, meeting have not yet been adopted.
The ordinance specifically requires certain materials to be submitted to the City as part of the CUP application packet. Pursuant to CCMC section 9.108.070(b), these materials must be submitted prior to the lottery being held. Among those materials required to be submitted is a floor plan denoting all the use of areas of the Dispensary, including storage, employee areas, exterior lighting, restrooms, and signage. (CCMC section 9.108.080(A)(4)).
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 applicants, Mark Carnevale and Allen Cooper, pursuant to CCMC section 2.04.110. A copy of the appeal is attached. The City Council review of this matter is de novo.
While a location map and another diagram were submitted along with the application packet (which may have been intended to also serve as the required floor plan), Planning Division staff has determined that what was submitted with the original application packet did not include the information which is specifically required by the ordinance with respect to the floor plan.
After the lottery was held, the applicant did submit a floor plan on October 9, 2014, which is also attached. However, the City Attorney's Office has made the determination that according to the language of the ordinance, all application materials were required to have been submitted prior to the initial deadline and prior to the lottery. Planning staff has deemed the information required on the floor plan to be a significant part of the application, without which the application cannot be fully processed.
Staff and the City Attorney's Office have recommended denial of other dispensary application permits which failed to comply with the ordinance in various respects, such as the selection of a location which is prohibited under the ordinance. The City Attorney's office has previously concluded that such applications providing prohibited locations cannot be changed or amended following submission of the initial application after the lottery has been held.
In this case, the omission of the floor plan from the initial application is arguably a more minor deficiency than the selection of a prohibited location. Nonetheless, the guiding legal principle remains the same. The ordinance clearly requires the submission of certain information and documentation prior to the lottery. Unfortunately, the applicants in this case did not submit all the required documentation and for that reason the recommendation is that the determination that the application was incomplete be upheld.
C. The Appeal
The appeal was received by the City on December 23, 2014, and is attached. The grounds for the appeal is that "[t]he decision of the Planning Commission was incorrect, contrary to law and constituted an abuse of discretion."
The appeal does not raise any new or different issues, so the analysis above still applies.
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 9.108.080(B), the Planning Commission's decision should be affirmed.
DISCUSSION:
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FISCAL IMPACT:
None.
ATTACHMENTS:
1. Initial Planning Commission Staff Report for Sunshine Coast Wellness
2. Revised Planning Commission Staff Report for Sunshine Coast Wellness
3. Conditional Use Permit Application for Sunshine Coast Wellness
4. Floor Plan submitted October 9, 2014
5. Planning Commission Agenda for December 17, 2014
6. Appeal of Sunshine Coast Wellness Planning Commission Action