City Council
MEETING DATE: 7/22/2015
TITLE:
Title
Appeal of Planning Commission Denial of Conditional Use Permit Application for King Blaise Cooperative located at 68860 Ramon Road in Cathedral City.
End
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 denying the Dispensary Conditional Use Permit application and affirm the findings and decision of the Planning Commission.
Body
BACKGROUND:
A. The Newly Enacted Ordinance and Planning Commission Determination
Last year, the City Council enacted an 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 King Blaise Cooperative is for the sixth-ranked application under the lottery. The proposed location is 68860 Ramon Road. The matter was considered by the Planning Commission on June 3, 2015, which determined that the proposed application was in violation of the CCMC due to issues discovered in the applicant’s background check.
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) an email from attorney Michele McKee opposing the application; and (d) The Planning Commission Agenda.
The ordinance includes several criteria which automatically disqualify a particular applicant. Cathedral City Municipal Code section 9.108.100 provides that following a public hearing, the Planning Commission shall deny a dispensary CUP application upon making any of the following findings:
• “The applicant has made one or more false or misleading statements or omissions on the application or during the application process;”
• “The applicant, or any person who is managing or is otherwise responsible for the activities of the dispensary, or any employee(s) or volunteer(s), if any, has been convicted of a felony…with the exception of marijuana related offenses for which the conviction occurred prior to passage of Compassionate Use Act (“CUA”), and which would be defensible today under the CUA…;”
• “The applicant, or any person who is managing or is otherwise responsible for the activities of the proposed dispensary has engaged in unlawful, fraudulent, unfair, or deceptive business acts or practices…”
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 may be appealed to the City Council pursuant to CCMC section 2.04.100. The subject appeal was timely filed by applicant Brian Scott Nicholson, pursuant to CCMC section 2.04.110. A copy of the appeal is attached. The City Council review of this matter is de novo-meaning no deference is given to the decision of the Planning Commission.
The Police Department conducted a background check as required by the Ordinance and made the following findings, which were affirmed by the Planning Commission:
1. Blaise Raymond Moreno, who is listed as an Officer of King Blaise Cooperative on the application, was convicted of a violation of Penal Code section 245(A)(1), assault with a deadly weapon (not a firearm) in 1991 and sentenced to two years in State prison.
2. When Mr. Moreno took over a collective (California Alternative Medicinal Solutions) in Yucca Valley in 2012, he failed to change the ownership on the business license because it would have required him to close the business and reapply for a permit. If the business closed, Mr. Moreno believed the business would not have been allowed to reopen. The Police Department determined Mr. Moreno was fraudulent and deceptive in his business dealings with Yucca Valley, and violated Yucca Valley’s ordinance.
3. Mr. Moreno was complicit in the transportation from his “grow house” in Cherry Valley, California to his store in Yucca Valley. Mr. Moreno admitted he is in violation of State and Federal laws by operating a marijuana “grow house,” but said that without doing so he would be unable to meet the supply demands to sell marijuana. The Police Department determined this is an unlawful business practice by Mr. Moreno.
4. Brian Scott Nicholson, who is listed as President of King Blaise Cooperative on the application, admitted he had taken over full responsibility of California Alternative Medicinal Solutions in Yucca Valley from the previous owner. Mr. Moreno admitted that he and Mr. Nicholson failed to follow the process for changing ownership of the business in Yucca Valley because they feared they would not be allowed to reopen. The Police Department determined Mr. Nicholson also engaged in unlawful, fraudulent and deceptive business acts.
5. Mr. Nicholson failed to provide background investigators the information regarding the business license for California Alternative Medicinal Solutions, but presented the ownership change from the previous owner as compliant with the law. Mr. Nicholson told background investigators he did not have to undergo a background investigation in Yucca Valley and showed newspaper clippings where he was identified as the Director of California Alternative Medicinal Solutions. The Police Department determined Mr. Nicholson’s failure to volunteer this information was not only an admission, but was done to mislead the background investigators.
On the basis of these determinations and findings, the Community Development Director recommends that King Blaise Cooperative’s application be denied and the Planning Commission’s findings and denial of the application be affirmed. The City Attorney’s office supports that recommendation.
Attorney Michele McKee, who represents the #8 applicant, Green Cross Co-op/PSGC, Inc., submitted an email opposing the application on the ground that the applicant does not have an actual signed lease, although the applicant does have written permission from the property owner to operate a dispensary on the property. A copy of that email is attached. While CCMC section 9.108.080(A)(7) does require a notarized acknowledgment from the property owner that a medical marijuana dispensary will be operated on the property, a signed lease is not required. Therefore, the City Attorney’s office recommends that this objection not be used as a ground to deny the application or deem it incomplete.
C. The Appeal
The appeal was received by the City on June 10, 2015, and is attached. The grounds stated in the appeal are that “the findings in the [staff report as affirmed by the Planning Commission] are not true and misleading.”
The recommendation of the Community Development Director and the City Attorney’s Office remain the same. Most notably, even if the City Council were to disregard Findings #2 through #5, the #1 Finding creates the clearest basis for denial. No applicant is permitted to have a felony conviction, and Mr. Moreno’s felony conviction directly violates the requirements of the ordinance.
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 on the application’s CCMC violation, 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:
That the findings and decision of the Planning Commission denying the application of King Blaise Cooperative for a Dispensary Conditional Use Permit be affirmed in their entirety.
FISCAL IMPACT:
None
ATTACHMENTS:
1. Planning Commission Staff Report for King Blaise Cooperative
2. Conditional Use Permit Application for King Blaise Cooperative
3. Email from Attorney Michele McKee
4. Planning Commission Agenda for June 3, 2015
5. Appeal of King Blaise Cooperative Planning Commission Action