City Council
MEETING DATE: 1/12/2015
TITLE:
Title
Appeal of: Planning Commission (1) Decision Granting Conditional Use Permit Number 14-011 to Green Cross Pharma located at 68730 Summit Drive in Cathedral City; and (2) Decision Granting CEQA Exemption for same
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FROM:
Charles R. Green, City Attorney
Nicholas Hermsen, Deputy City Attorney
RECOMMENDATION:
Recommendation
Staff recommends that the City Council hear an appeal of the decisions of the Planning Commission (1) Determining that the application for Conditional Use Permit Number 14-011 for Green Cross Pharma is complete; (2) Granting of Conditional Use Permit Number 14-011 to Green Cross Pharma; and (3) Granting CEQA Exemption same; hold a public hearing; and then uphold the Planning Commission Decisions on all issues, based upon the findings contained in this Staff Report and upon any oral findings made by the City Council.
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BACKGROUND:
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 ordinance regulating medical marijuana dispensaries is codified at CCMC chapter 9.108, the "Ordinance")). Under the Ordinance, a deadline was established to submit a complete CUP application to the City by 2:00 p.m. on September 23, 2104, 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 at 2:15 pm on September 23, 2014, and each of the applications has been ranked.
The instant application for Green Cross Pharma is for the first-ranked application under the lottery ("Proposed CUP"). The proposed location is 68730 Summit Drive. The matter was considered by the Planning Commission on December 17, 2014. At that time, the Planning Commission: (1) Found the application itself to be complete; (2) Approved an exemption to the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Class 1, Existing Facilities) of the State CEQA Guidelines, finding that the operation was located within an existing structure involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination; and (3) Approved the Conditional Use Permit for the operation of the medical marijuana dispensary, subject to specified conditions of approval and based upon specified findings.
The administrative record for the Planning Commission meeting is attached to this staff report, including: (a) The Planning Commission Staff Report; (b) Proposed Conditions of Approval; (c) The application; (d) Letter from attorney Steven Simas dated November 18, 2014 regarding his representation of Cathedral City Care Collective; (e) site photographs; (f) Letter from attorney Steven Simas dated December 16, 2014, in opposition to the application; (g) Planning Commission December 17, 2014 Agenda; (h) Planning Commission Public Hearing Notice; and (i) The Planning Commission's minutes.
The Application Itself and the Proposed CUP
Pursuant to CCMC Section 9.108.080(B), the Planning Commission has the decision-making authority to find whether an application is complete and in compliance with Chapter 9.108. If the Planning Commission deems the application itself complete and in full compliance with the Cathedral City Municipal Code, the Planning Commission then considers the actual CUP itself. A decision of the Planning Commission on the granting of a CUP may be appealed pursuant to CCMC Section 9.108.140. The subject appeal was timely filed by attorney Simas on behalf of Nick Hughes of Cathedral City Care Collective. A copy of the appeal is attached, as is the Public Hearing Notice for this appeal hearing. The City Council review of this matter is de novo.
Application: The instant application complies with the requirements of the CCMC and should be deemed complete based upon the same findings that the Planning Commission made. A complete copy of the application submitted is attached to this staff report for reference and review. The application and $7,500 application fee were submitted to the City on September 23, 2014, prior to the City holding the lottery.
The CUP: Pursuant to the Ordinance, a CUP may only be issued following investigation, verification, notice and a public hearing. A summary of the CUP application and the results of the investigation and verification are set forth below.
A. Location
The project site is zoned I-1 (Light Industrial). The surrounding uses are primarily automotive-related. There is a roofing contractor on one side of the proposed location, and a furniture wholesaler on the other side of the proposed location. Pursuant to CCMC Section 9.108.060(C), a medical marijuana dispensary may only be located within the I-1 Light Industrial District Zone, the CBP-2 Commercial Park District Zone, or the PCC Planned Community Commercial District Zone.
Further, pursuant to CCMC Section 9.108.060(A), no medical marijuana dispensary is permitted to be established: (a) within six-hundred (600) feet of a school, public playground or park, child care or day care facility, or youth center; (b) within one-thousand (1,000) feet of any other medical marijuana dispensary; (c) any residential zone; or (d) within two-hundred and fifty (250) feet of East Palm Canyon Drive or a residential zone.
Planning staff has confirmed that the subject location of the Proposed CUP does not violate any of the applicable location restrictions set forth in the CCMC.
B. Size of Facility
Pursuant to CCMC Section 9.108.060(D), medical marijuana dispensaries are generally limited to 2,000 square feet, but at the Planning Commission's discretion, may be up to 2,500 square feet. The total proposed size of the dispensary is 2,500 square feet.
C. Proposed Use and Security Plan
The application states that the proposed medical marijuana dispensary is expected to serve 250 primary caregivers and 3,500 qualified patients. The proposed medical marijuana dispensary does not initially intend to offer delivery service, and will notify the City prior to initiating such delivery service. City Staff has determined that a site and floor plan with details adequate to inform the reader of the building layout and location were included in the application.
The proposed medical marijuana dispensary submitted a security plan with the following details:
• "Patients shall enter a waiting room. Thru (sic) a window qualified patients (sic) recommendation will be verified, a membership agreement shall be signed and a patient authorization shall also be signed.
• Once verified qualified patient will be allowed to enter the man trap room. Where once entering the door behind them shall lock then the door to the dispensary room shall unlock allowing entry.
• All Marijuana products shall be locked in a safe at the end of each day.
• No Cash transaction shall occur.
• All glass windows shall have a metal grille for security & all doors shall have a metal rolling grille for added security.
• All windows shall be blacked out so interior of building cannot be seen from outside."
The floor plan includes proposed camera locations. Information from Eagle Eye LG Security, the proposed security company, was also included in the Application relating to the alarms. City Staff has determined that the security plan provides adequate lighting for business entrances and window areas.
The Police Department has reviewed the security plan and determined that it is satisfactory to protect the public health, safety and welfare.
D. Background Checks
The applicant and all persons who are proposed to be responsible for managing or otherwise responsible for the activities of the proposed medical marijuana dispensary, employees and/or volunteers have undergone background checks by the Police Department. The Police Department has determined that the backgrounds of each of these persons are acceptable and that none of the information obtained in the background checks would disqualify the applicant under the standards imposed by the CCMC. All criminal history information for these persons was properly disclosed in the application packet.
E. Authority for Use of Property
The applicant has entered into a purchase and sale agreement to purchase the subject property (68730 Summit Drive), with the sale conditioned upon the applicant being granted the instant CUP. A copy of the purchase and sale agreement was submitted with the Application.
F. Non-Profit Use
In addition, City staff has determined that the Application contained sufficient evidence that Green Cross Pharma is organized as a bona fide non-profit entity comprised exclusively of qualified patients and primary caregivers in accordance with California law. City Staff also has deemed that all other application requirements have been fulfilled.
The Appeal
The appeal was received by the City on December 24, 2014, and is attached. The grounds for the appeal are explained in detail below.
A. Building Square Footage
The appeal asserts that the proposed location, which is in a building that has a total of 4,000 square feet of floor space, violates the prohibition of dispensaries utilizing more than 2,000 square feet found in CCMC Section 9.108.060-while the City does have the discretion to approve up to 2,500 square feet.
The appeal asserts that the Planning Commission ignored and failed to consider:
"Why was this application for a dispensary over two thousand square feet even considered? There was no showing or investigation regarding this being the appropriate size for Green Cross Pharma."
"What use would the other 1,500 feet have? The Commission would not even discuss this and the staff report ignored it. As Section 9.108.060 provides, the dispensary cannot be increased in size without the City's permission; yet Ms. Scagliotti expressly told the Commission that she did not plan to rent the space; thus, she must be planning on using it."
"What consideration was given to the 'potential adverse impacts that might otherwise occur on surrounding neighborhoods, businesses and demands on city services,' including:
Demand on city resources for power, water, traffic, etc.
Issues regarding crime.
Issues regarding what other businesses may be located at 69730 Summit Drive and its impact on Green Cross Pharma."
One of the Planning Commission's findings was that "The site for the intended use is adequate in size and shape to accommodate such useĀ
" (Finding #6). As for the additional 1,500 feet in floor space in the building, it is clear that under the Ordinance the additional space could not be used as part of the dispensary's operations. Currently the building is vacant. The applicant may seek to utilize the additional space for another use unrelated to the dispensary, or may decide to keep it vacant. However, it is speculation to assume that the applicant would utilize the space as part of her dispensary or for some other unauthorized use. If the applicant did improperly and illegally expand the dispensary in violation of the CCMC, it would be subject to Code Compliance action, up to and including revocation of the subject CUP.
With respect to impacts, there is no information indicating that the opening up of a medical marijuana dispensary will have a detrimental impact. The City has zoned and otherwise severely restricted and regulated the operations of medical marijuana dispensaries. While a new use of any kind would certainly have differing impacts than previously established uses, the City Council, in authorizing dispensaries to operate in restricted zones, has already made a policy decision relating to this issue. Planning and Community Development staff have determined that the new use as a dispensary will have a negligible overall impact on the resources indicated.
B. Floor Plan
The appeal next argues that the floor plan submitted with the application improperly amends the original application, because the application form lists the address but does not specify that only part of the 4,000 square feet of the building will be used. The appeal asserts that this is an improper amendment to the application. Further, the appeal argues that there is no information on the use of the adjoining 1,500 square feet of the building that will not be used as the dispensary, and its impact on the dispensary, security issues, etc.
The application is clear that only 2,500 square feet were intended to be used for dispensary purposes. The floor plan was submitted simultaneously with the application form, prior to the lottery. It is clear from reading the application in its entirety that the entire building was not intended for use as a dispensary. Therefore, the information submitted with the floor plan does not constitute an "amendment."
Since the other 1,500 square feet of the building is currently vacant, there is no way to determine what the impact of the proposed dispensary would be on whatever use ultimately inhabits that space, and vice-versa. Any neighboring use to any proposed dispensary location could potentially change at some point in the future; it would be impossible to attempt to anticipate such future issues.
C. Alleged Amendment to Application
The appeal argues that the Planning Commission treated Green Cross Pharma more favorably than other applicants by allowing the "amendment" referred to above. For example, the Planning Commission denied the application of Sunshine Coast Wellness for failure to submit a floor plan-which the appeal argues was a clearly inadvertent omission.
The appeal further states that Green Cross Pharma's own floor plan was incomplete because it lacked "information regarding the use of the property, including newly divided units, no specified use or tenant, and no plan whatsoever regarding the additional 1500 square feet."
As explained above in subsection B, the proposed dispensary was not required to explain the potential future use of the additional 1,500 square feet, and was not required to include any information regarding that space in its application. Everything required by the Ordinance was included in the application packet. The floor plan submitted was sufficient under the Ordinance.
D. Applicant's Background
Next, the appeal asserts that the dispensary's operator, Maria Scagliotti, has two convictions for crimes of moral turpitude which prohibit her from owning or operating a dispensary under CCMC section 9.108.100(A)(4). Under that provision, if the Planning Commission finds that the proposed operator has been convicted of a misdemeanor involving moral turpitude, the application must be denied.
Ms. Scagliotti was convicted in March, 1996, of two misdemeanors-burglary and forgery. Both convictions were subsequently expunged. The appeal also asserts that Ms. Scagliotti was required to disclose her real estate license disciplinary action or revocation, which occurred in the late 1990s, and that such conduct evidences a moral character which is incompatible with the operation of a medical marijuana dispensary.
As required, the Police Department conducted a thorough background check and Ms. Scagliotti divulged both of these convictions in her initial application. The Police Department has determined that nothing in Ms. Scagliotti's background is in violation of the ordinance and would prevent her from operating the subject dispensary in compliance with all applicable laws and regulations. Further, disclosure of the real estate license revocation is not required by the Ordinance or by the application form.
E. Claim that Further Investigation is Required
The appeal states that the Planning Commission "was not briefed on a number of issues and refused to consider them," including "opposition from potential patients to someone with convictions handling their confidential medical informationĀ
and opposition from neighbors including the roofing company next door and the church school at the Iglesia Wesleyana Rios de Agua on Perez Road. This church and bible school are 549 feet from Green Cross and routinely have children on the premises." The appeal asserts that the proposed location is less than 600 feet from a school, in violation of CCMC section 9.108.060(A)(1).
Attorney Simas submitted a detailed ten (10) page letter to the Planning Commission on December 16, 2014, which was sent to each of the Planning Commissioners prior to the hearing, and is a part of the administrative record (and is also attached to this staff report). Attached to that letter was a letter from Ivana Davalos on behalf of Iglesia Wesleyana Rios De Agua Church in opposition to the CUP application. The letter indicates that the church has "regularly scheduled services and bible school for the children of our parishioners."
With respect to the location of the church which operates a bible school for children, this does not appear to fall under the definition of a "private school" as found in the Zoning Code. CCMC section 9.08.020 defines a "private school" as "an institution conducting regular academic instruction at kindergarten, elementary, secondary and college levels, operated by a nongovernmental organization." The bible school does not appear to be accredited by any known organization as a kindergarten, elementary, secondary or college legal institution. Therefore, it does not appear to be a school for purposes of interpretation of the distance requirements in the Ordinance.
As for the concerns expressed regarding objections to someone with convictions handling medical information, it is staff's view that the single objection letter received does not raise sufficient doubt about the credentials and moral character of the applicant to justify denial. As explained above, the Police Department, which is in the best position to judge the applicant's qualifications and background in this regard, has determined that the issues raised do not pose a concern sufficient to disqualify her.
F. California Environmental Quality Act (CEQA) Exemption
The appeal asserts that the proposed dispensary is not exempt from CEQA due to its location at an existing facility because "the dispensary is an entirely new use" and because the additional 1,500 square feet of the building "has no established use and represents the subdivision of the property." The appeal also states that "the change in use to a dispensary will tax local resources such as the use of water, electricity, and others given that volume of plants that will be grown."
The Planning Commission found that the facility is exempt from CEQA as an existing facility. The number of plants that can be grown within the facility is de minimis, and Community Development and Planning staff have determined that the impact on environmental resources will be insignificant.
Appeal Procedures
The appeal of the CUP is a formal noticed public hearing. The City staff will present its staff report. Then, the Mayor opens the public hearing, first allowing the Appellant the right to testify. Then persons wishing to testify in favor of the appeal may speak; then those in opposition; then those with a neutral position; then rebuttal time is given to the Appellant. During the open hearing, written testimony is also considered. Adequate time to persons providing testimony must be allowed, however the Mayor can request that persons do not become repetitive. Once all persons have had an opportunity to be heard, the Mayor closes the public hearing and brings it to the City Council for deliberation and action. 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 application back to the Planning Commission with direction to consider the new or additional information.
3. The City Council may remand the application back to the Planning Commission with direction to further review specific elements of the proposal and impose conditions to mitigate the potential impact on the neighborhood.
4. The City Council may modify the approval of the Planning Commission to impose additional, fewer, modified conditions that the City Council finds will better mitigate the potential negative impacts of the proposal.
5. The City Council may reverse the decision of the Planning Commission and deny the Conditional Use Permit if the City Council finds the applicant is unwilling or unable to satisfy the conditions of approval.
CITY COUNCIL FINDINGS:
Should the City Council wish to deny the appeal, it does so on the following findings:
1. The Application itself is complete and meets the requirements of the CCMC.
2. The CUP is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Class 1, Existing Facilities) of the State CEQA Guidelines, because the operation is located within an existing structure involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination.
3. The use applied for at the location set forth in the Application is properly one for which a CUP is authorized by CCMC Chapter 9.72.
4. The use is necessary or desirable for the development of the community, is in harmony with the various elements or objectives of the general plan, and is not detrimental to existing uses or to uses specifically permitted in the zone in which the proposed use is to be located.
5. The site for the intended use is adequate in size and shape to accommodate such use and all of the yards, setbacks and walls or fences, landscaping and other features required in order to adjust such use to those existing or permitted future uses on land in the neighborhood.
6. The site for the proposed use relates properly to streets and highways which are designed and improved to carry the type and quantity of traffic generated or to be generated by the proposed use.
7. Although the building in which the proposed dispensary will be located is approximately 4,000 square feet, the dispensary itself will only utilize 2,500, square feet which is in compliance with the CCMC.
8. No amendment to the CUP Application has been made by the City.
9. The Police Department has determined that nothing in Ms. Scagliotti's background is in violation of the CCMC and would prevent her from operating the subject dispensary.
10. The Church's bible study program is not a school, as defined by the CCMC, and therefore not a "school" for purposes of interpretation of the distance requirements in the Ordinance.
11. The applicant has agreed to comply with any and all of the conditions imposed by the Planning Commission or be subject to a revocation hearing.
12. The applicant has complied with all requirements of CCMC chapter 9.108, and the proposed medical marijuana dispensary is in anticipated full compliance with that chapter.
DISCUSSION:
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FISCAL IMPACT:
Additional tax revenue in an unknown amount generated from the Cannabis and Marijuana Tax enacted by voters in November, 2014.
ATTACHMENTS:
1. Planning Commission Staff Report for Green Cross Pharma
2. Conditions of Approval for Green Cross Pharma
3. Conditional Use Permit Application for Green Cross Pharma
4. November 18, 2014 regarding his representation of Cathedral City Care Collective
5. Site Photos for Green Cross Pharma
6. Letter from Steven Simas, Esq., in Opposition to Green Cross Pharma Application dated December 16, 2014
7. Planning Commission Agenda for December 17, 2014
8. Public Hearing Notice for December 17, 2014 Planning Commission Meeting
9. Appeal of Green Cross Pharma Planning Commission Action
10. Public Hearing Notice for City Council Appeal