HomeMy WebLinkAboutPC_2010-02-16_AgendaPacketCITY OF ATASCADERO
PLANNING COMMISSION AGENDA
Regular Meeting
Tuesday, February 16, 2010 — 7:00 P.M.
City Hall
Council Chambers
6907 El Camino Real
Atascadero, California
CALL TO ORDER
Pledge of Allegiance
Roll Call: Chairperson Moreno
Vice Chairperson Bentz
Commissioner Colamarino
Commissioner Jack
Commissioner Schmidt
Commissioner Sturtevant
Commissioner Ward
APPROVAL OF AGENDA
PUBLIC COMMENT
(This portion of the meeting is reserved for persons wishing to address the Commission on any matter not
on this agenda and over which the Commission has jurisdiction. Speakers are limited to three minutes.
Please state your name and address for the record before making your presentation. The Commission may
take action to direct the staff to place a matter of business on a future agenda.)
PLANNING COMMISSION BUSINESS
CONSENT CALENDAR
(All items on the consent calendar are considered to be routine and non -controversial by City Staff and will
be approved by one motion if no member of the Commission or public wishes to comment or ask questions.)
City of Atascadero Planning Commission Agenda Regular Meeting, February 16, 2010
Page 2of4
1. APPROVAL OF MINUTES OF THE REGULAR PLANNING COMMISSION
MEETING ON JANUARY 19, 2010.
COMMUNITY DEVELOPMENT STAFF REPORTS
2. PLN 2009-1343 / TREE REMOVAL PERMIT FOR 4755 SAN ANSELMO AVE.
Property Owner/
Michael Messer, 8270 Tolosa Road, Atascadero, CA 93422
Applicant:
PLN 2009-1348 / ZCH 2009-0157
Certified Arborist:
Steven Alvarez, A&T Arborists, PO Box 1311, Templeton, CA 93465
Project Title:
PLN 2009-1343 / TRP 2009-0134
Project
4755 San Anselmo Ave., Atascadero, CA 93422
Location:
APN 029-011-037 (San Luis Obispo County)
Project
The proposed project includes a request to remove two (2) Live Oak trees
Description
totaling 41" inches (dbh) in order to construct frontage improvements and a
shared driveway for four (4) new single-family homes. One tree is 13" (dbh)
and one tree is 28" (dbh).
PUBLIC HEARINGS
3. PLN 2009-1348, CITYWIDE MUNICIPAL CODE TEXT CHANGES
PROHIBITING MEDICAL MARIJUANA FACILITIES IN THE CITY OF
ATASCADERO
Applicant:
City of Atascadero, 6907 EI Camino Real, Atascadero, CA 93422
Project Title:
PLN 2009-1348 / ZCH 2009-0157
Medical Marijuana
Project Location:
Citywide, Atascadero, CA 93422 (San Luis Obispo County)
Project
The project consists of an application to adopt a draft ordinance
Description:
prohibiting the establishment and operation of medical marijuana facilities
within the City of Atascadero. The ordinance consists of amendments to
chapter 13 of Title 5, Public Welfare, of the Municipal Code and a repeal
of subsections of Section 9-3.233, Conditional Uses, of the Municipal
Code to prohibit medical marijuana facilities. The Planning Commission
will be making a recommendation to the City Council.
Affects General Plan Designations / Zoning Districts Citywide
City of Atascadero Planning Commission Agenda
Regular Meeting, February 16, 2010
Page 3of4
DISCLOSURE OF EX PARTE COMMUNICATIONS:
Prior to a project hearing Planning Commission Members must disclose any communications they have had on any
quasi-judicial agenda items. This includes, but is not limited to, Tentative Subdivision Maps, Parcel Maps,
Variances, Conditional Use Permits, and Planned Development Permits. This does not disqualify the Planning
Commission Member from participating and voting on the matter, but gives the public and applicant an opportunity
to comment on the ex parte communication.
(For each of the following items, the public will be given an opportunity to speak. After a staff report, the Chair will open the public
hearing and invite the applicant or applicant's representative to make any comments. Members of the public will be invited to provide
testimony to the Commission following the applicant. Speakers should state their name and address for the record and can address the
Commission for three minutes. After all public comments have been received, the public hearing will be closed, and the Commission
will discuss the item and take appropriate action(s).)
COMMISSIONER COMMENTS AND REPORTS
DIRECTOR'S REPORT
ADJOURNMENT
The next regular meeting of the Planning Commission is scheduled for March 2, 2010, at City
Hall, Council Chambers, 6907 El Camino Real, Atascadero.
Please note: Should anyone challenge in court any proposed development entitlement listed
on this Agenda, that person may be limited to raising those issues addressed at the public
hearing described in this notice or in written correspondence delivered to the Planning
Commission at, or prior to this public hearing.
City of Atascadero Planning Commission Agenda Regular Meeting, February 16, 2010
Page 4 of 4
City of Atascadero
WELCOME TO THE ATASCADERO PLANNING COMMISSION MEETING
The Planning Commission meets in regular session on the first and third Tuesday of each month at 7:00 p.m. at City
Hall, Council Chambers, 6907 EI Camino Real, Atascadero. Matters are considered by the Commission in the order
of the printed Agenda.
Copies of the staff reports or other documentation relating to each item of business referred to on the Agenda are on
file in the office of the Community Development Department and are available for public inspection during City Hall
business hours at the Front Counter of City Hall, 6907 EI Camino Real, Atascadero, and on our website,
www.atascadero.org. An agenda packet is also available for public review at the Atascadero Library, 6850 Morro
Road. All documents submitted by the public during Commission meetings that are either read into the record or
referred to in their statement will be noted in the minutes and available for review in the Community Development
Department. Commission meetings are video-taped and audio recorded, and may be reviewed by the public. Copies
of meeting recordings are available for a fee. Contact the City Clerk for more information (470-3400).
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in a City
meeting or other services offered by this City, please contact the City Manager's Office or the City Clerk's Office,
both at (805) 470-3400. Notification at least 48 hours prior to the meeting or time when services are needed will
assist the City staff in assuring that reasonable arrangements can be made to provide accessibility to the meeting or
service.
TO SPEAK ON SUBJECTS NOT LISTED ON THE AGENDA
Under Agenda item, "PUBLIC COMMENT", the Chairperson will call for anyone from the audience having business
with the Commission to approach the lectern and be recognized.
1. Give your name for the record (not required)
2. State the nature of your business.
3. All comments are limited to 3 minutes.
4. All comments should be made to the Chairperson and Commission.
5. No person shall be permitted to make slanderous, profane or negative personal remarks concerning any
other individual, absent or present.
This is when items not on the Agenda may be brought to the Commission's attention. A maximum of 30 minutes will
be allowed for Public Comment Portion (unless changed by the Commission).
TO SPEAK ON AGENDA ITEMS (from Title 2, Chapter 1 of the Atascadero Municipal Code)
Members of the audience may speak on any item on the agenda. The Chairperson will identify the subject, staff will
give their report, and the Commission will ask questions of staff. The Chairperson will announce when the public
comment period is open and will request anyone interested to address the Commission regarding the matter being
considered to step up to the lectern. If you wish to speak for, against or comment in any way:
1. You must approach the lectern and be recognized by the Chairperson.
2. Give your name (not required).
3. Make your statement.
4. All comments should be made to the Chairperson and Commission.
5. No person shall be permitted to make slanderous, profane or negative personal remarks concerning any
other individual, absent or present.
6. All comments limited to 3 minutes.
If you wish to use a computer presentation to support your comments, you must notify the Community Development
Department at 470-3402 at least 24 hours prior to the meeting. Digital presentations brought to the meeting on a
USB drive or CD is preferred. Access to hook up your laptop to the City's projector can also be provided. You are
required to submit to the Recording Secretary a printed copy of your presentation for the record. Please check in with
the Recording Secretary before the meeting begins to announce your presence and turn in the printed copy.
The Chairperson will announce when the public comment period is closed, and thereafter, no further public
comments will be heard by the Commission.
ITEM NUMBER: 1
DATE: 2-16-10
CITY OF ATASCADERO
PLANNING COMMISSION
DRAFT MINUTES
Regular Meeting - Tuesday, January 19, 2010 — 7:00 P.M.
City Hall Council Chambers
6907 EI Camino Real, Atascadero, California
CALL TO ORDER - 7:01 p.m.
Chairperson Jack called the meeting to order at 7:01 p.m. and Commissioner Sturtevant
led the Pledge of Allegiance.
ROLL CALL
Present: Chairperson Jack, Vice Chairperson Moreno, Commissioners
Bentz, Colamarino, Schmidt, Sturtevant, and Ward
Absent: None
Others Present: Recording Secretary Annette Manier
Staff Present: Community Development Director Warren Frace
APPROVAL OF AGENDA
MOTION: By Commissioner Bentz and seconded by Vice
Chairperson Moreno to approve the agenda.
Motion passed 7.0 by a roll -call vote.
PUBLIC COMMENT
None
Chairperson Jack closed the Public Comment period.
PC Draft Minutes of 1/19/10
Page 1 of 4
PLANNING COMMISSION BUSINESS
None
CONSENT CALENDAR
1. APPROVAL OF MINUTES OF THE REGULAR PLANNING COMMISSION
MEETING ON DECEMBER 15, 2009.
MOTION: By Vice Chairperson Moreno and seconded by Commissioner
Bentz to approve the Consent Calendar.
Motion passed 7.0 by a roll -call vote.
COMMUNITY DEVELOPMENT STAFF REPORTS
None
PUBLIC HEARINGS
2. PLN 2008-1311, CONDITIONAL USE PERMIT FOR 7121 SERENA COURT
Property owner:
Atascadero Mutual Water Company, 5005 EI Camino Real, Atascadero, CA 93422
Applicant:
Metro PCS, 1080 Marina Village Parkway, Alameda, CA 94501
Project Title:
PLN 2008-1311 / CUP 2008-0236
Project location:
7121 Serena Court, Atascadero, CA 93422
APN 029-105-041 (San Luis Obispo County)
Project Description:
The project consists of an application to construct a wireless communications
facility to co -locate with two other telecommunications facilities at the
Atascadero Mutual Water Co. water tank location. The project proposes three
panel antennas supported on two new support structures 121/2 feet above
ground. In addition, a 150 sq. ft. equipment shelter is proposed. It would be set
into an excavated area of approx. 21/2 ft. deep to reduce the height. The height
is approx. 6 ft. and the material will be split face block painted a brown color to
blend with the area and match existing facilities. The previous wireless sites
consist of the installation of panel antennas mounted on 15 ft. poles, a 4 ft. in
diameter microwave dish on a 15 ft. pole, two equipment shelters and four pole
mounted antennas. The other facilities are currently T -Mobile and AT&T (both
originally developed by Cingular, which is no longer in business.)
General Plan Designation: RR (Rural Residential)
Zoning District: RR (Residential Residential)
Proposed
Based on the Initial Study prepared for the project, a Mitigated Negative
Environmental
Declaration (MND) is proposed. The MND is available for public review at 6907 EI
Determination:
Camino Real, Community Development Department from 8:30 a.m. to 5:00 p.m.
Monday through Friday.
PC Draft Minutes of 1/19/10
Page 2 of 4
DISCLOSURE OF EX PARTE COMMUNICATIONS:
• Commissioner Schmidt — No ex parte.
• Commissioner Sturtevant — No ex parte.
• Vice Chairperson Moreno — No ex parte.
• Chairperson Jack — No ex parte.
• Commissioner Bentz - No ex parte.
• Commissioner Colamarino — No ex parte.
• Commissioner Ward — No ex parte.
Community Development Director Warren Frace gave the staff report and answered
questions from the Commission.
PUBLIC COMMENT
Mary Ann Miller Novak from Metro PCS thanked staff for getting them to the public
hearing. The Metro PCS application has spurred past compliance issues at this site,
however, the companies involved will be working together to replant vegetation and to
provide additional screening. A stealthing technique called an antenna sock will go over
the pole to soften the appearance of the antenna. Visual simulations were provided as
part of their application. Alpine PCS is no longer in business. She has read the
conditions of approval and agrees to abide by them. Ms. Novak answered questions
from the Commission.
Chairperson Jack closed the Public Comment period.
MOTION: By Commissioner Bentz and seconded by
Commissioner Colamarino to adopt PC Resolution 2010-
0035 approving PLN 2008-1311, a Conditional Use
Permit 2008-0236 to install 3 panel antennas, a 10 x 15
sq. ft. equipment shelter and related utilities on APN#
028-221-007 and 029-105-041, based on findings and
subject to Conditions of Approval.
Motion passed 7.0 by a roll -call vote.
COMMISSIONER COMMENTS AND REPORTS
Commissioner Bentz asked Director Frace if elections would take place at the next
meeting. Director Frace said yes.
Commissioner Schmidt commented on the new Rite Aid building and said that the
erosion control measures are being done and maintained very well.
PC Draft Minutes of 1/19/10
Page 3 of 4
Commissioner Schmidt read an article written by Lon Allen that some changes are
slated for Traffic Way and improvements to the west of EI Camino Real. It stated the
bridge will have a brick fagade like the one in the downtown area. He would like to
know if the City or Redevelopment Agency could fund a similar brick fagade for the
Stadium Park Bridge. Director Frace said it would be a decision of the Redevelopment
Agency.
Commissioner Colamarino asked Director Frace when the interchange project would be
done. Director Frace said the official schedule says early 2011. Unofficially, they will
be done this summer.
DIRECTOR'S REPORT
• The next meeting is scheduled for February 2, 2010.
• The meeting scheduled for February 16, 2010 will have an item on the agenda
regarding Medical Marijuana dispensaries with a report from the City Attorney.
• Director Frace gave the following staffing update: Kelly Gleason, Senior Planner,
has resigned; Callie Taylor, Associate Planner, is on family leave until the first
week of April and she is in the office only on Wednesdays; Contract Planner,
Mimi Whitney, is no longer with the City as her contract ended last week; we are
hiring a new intern and working on getting additional staffing in place.
ADJOURNMENT - 7:25 p.m.
The next regular meeting of the Planning Commission is scheduled for February 2,
2010, at City Hall, Council Chambers, 6907 EI Camino Real, Atascadero.
MINUTES PREPARD BY:
Annette Manier, Recording Secretary
Il Cityhalllcdvlpmnt1- PC MinuteslPC Minutes 101PC Minutes 1 19 10.doc
PC Draft Minutes of 1/19/10
Page 4 of 4
ITEM NUMBER: 2
DATE: 2-16-10
Atascadero Planning Commission
Staff Report — Community Development Department
Callie Taylor, Associate Planner, 470-3448, ctaylor@atascadero.org
PLN 2009-1343
Tree Removal Permit
4755 San Anselmo Road
(Messer)
SUBJECT:
The proposed project includes a request to remove two (2) Live Oak trees totaling 41"
inches (dbh) in order to construct frontage improvements and a shared driveway for
four (4) new single-family homes. One tree is 13" (dbh) and one tree is 28" (dbh).
RECOMMENDATION:
Staff Recommends:
Adopt resolution PC 2010-0006 to allow the removal of two (2) Live Oaks totaling 13 -
inches DBH and 28 -inches DBH each, subject to the guidelines and mitigation required
by the Atascadero Native Tree Ordinance.
Situation and Facts:
1. Property Owner: Michael Messer, 8270 Toloso Road, Atascadero, CA
93422
2. Project Address: 4755 San Anselmo Road, Atascadero, CA 93422
APN 029-011-037
3. Certified Arborist: A&T Arborists, PO Box, 1311, Templeton, CA 93465
4. General Plan Designation: Single -Family Residential—X (SFR -X))
5. Zoning District: Limited Single -Family -X (LSF -X)
6. Existing Use: One Single -Family Residence
ITEM NUMBER: 2
DATE: 2-16-10
DISCUSSION:
Background:
The subject site at 4755 San Anselmo Road is currently developed with one single-
family residence. In April of 2009, the property owner submitted documentation to the
City to verify that there were actually four (4) underlying parcels on the subject property.
A Certificate of Compliance was recorded which identified that the underlying lots were
original colony parcels or were created by deed prior to City incorporation. Each
underlying lot is a legal buildable lot.
Analysis:
In order to construct one house on each of the four existing properties, the applicant is
proposing to demolish the existing residence and construct four new homes with a
shared driveway. Frontage improvements are proposed along San Anselmo Road with
the shared driveway proposed down the center of the project where the lots intersect.
Grading would be required on the existing slopes for the driveway and frontage
improvements and to create building pads for each residence.
In order to grade the front of the property for frontage improvements and the shared
driveway, two native Live Oaks totaling 41 -inches dbh would need to be removed. Both
trees are in poor condition, as observed by the project arborist. The trees are located
near the front property line next to San Anselmo Road. There are two additional native
Sycamore trees located within the project site. These trees will be protected with tree
protection fencing and will not be significantly impacted by the construction of the
residences.
Site Plan
ITEM NUMBER: 2
DATE: 2-16-10
Tree Mitigation
The applicant shall mitigate the tree removals in accordance with the Atascadero Native
Tree Ordinance. The applicant shall either replant seven (7), five -gallon trees on site,
or make a mitigation payment of $341.67 into the tree fund.
Evergreen Native Trees (inches)
Deciduous Native Trees (inches)
Totals
dbh notes
dbh
notes
1 28 -inches Tree #4
1 0
2 13 -inches Tree #3
2
3
3
15
15
Total 41 -inches
Total 0 -inches
41 -inches
Mitigation Requirement
req'd tree replacements: 7 five gal trees
req'd tree replacements
0 five gal trees
Proposed Replanting 0 five gal trees
Proposed Replanting
0 five gal trees
0 five gal trees
0 fifteen gal trees
0 fifteen gal trees
0 fifteen gal trees
0 box trees (24")
0 box trees (24")
0 box trees (24")
Remaining Mitigation 0 five gal trees
Remaining Mitigation
0 five gal trees
0 }live fai4rees—
Tree Fund Payment: $ 341.67
Tree Fund Payment: $
$ 341.67
FINDINGS:
�
Pursuant to the Atascadero Native Tree Ordinance, "decisions on native tree removals
of 24 -inch dbh-size or larger shall be made by the Planning Commission." In
considering any Tree Removal Permit request, at least one of the findings must be
made. Staff has identified finding (v) as appropriate for the application request:
(v). Trees proposed for removal are obstructing proposed improvements that could not
be reasonably designed to avoid the need for tree removal, as certified by a report
from the Site Planner and determined by the Community Development Department
based on the following factors:
• Early consultation with the City;
• Consideration of practical design alternatives;
• Provision of cost comparisons (from applicant) for practical design
alternatives;
• If saving tree eliminates all reasonable uses of the property; or
• If saving the tree requires the removal of more desirable trees.
ITEM NUMBER: 2
DATE: 2-16-10
CONCLUSIONS:
The proposed project includes a request to remove two (2) Live Oak trees at 13 -inches
(dbh) and 28 -inches (dbh) in order to construct frontage improvements and a shared
driveway for four (4) new single-family homes. The applicant shall either replant seven
(7), five -gallon trees on site, or make a mitigation payment of $341.67 into the tree fund.
With the proposed mitigation, approval of the removal would be consistent with the
Atascadero Native Tree Ordinance.
ALTERNATIVES:
1. The Commission may approve the project with additional or revised project
conditions.
2. The Commission may deny the project if it is found that the required findings cannot
be made. The Commission's motion to deny must include a finding basis for denial.
3. The Commission may continue the hearing and refer the item back to staff for
additional information or analysis. Direction should be given to staff and the
applicant on required information.
ATTACHMENTS:
Attachment 1 — Location Map (General Plan & Zoning)
Attachment 2 — Aerial Photo
Attachment 3 — Arborist Report
Attachment 4 — Draft Resolution PC 2010-0006
ITEM NUMBER: 2
DATE: 2-16-10
ATTACHMENT 1: Location Map
PLN 2009-1343 / TRP 2009-0134
4755 San Anse/mo Road
a
• Project Site ,\
• 4755 San Anselmo
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ITEM NUMBER: 2
DATE: 2-16-10
ATTACHMENT 2: Aerial Photo
4755 San Anselmo
lot
Project Location: to
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ATTACHMENT 3: Arborist Report
A Z4
ITEM NUMBER
DATE: 2-16-10
August 4, 2009
RECEIVED
OCT 13 2009
Michael D. Messer
8270 Toloso Road
Atascadero, CA 93422
COMMUNITY DEVELOPMENT
Re; Tree Protection Plan for development located at 4755 San Anselmo Road
Atascadero, CA 93422.
This Tree Protection Plan is for the location stated above. The development will be
impacting four native trees, two live oaks (Quercus agrifolia) and two sycamore (Plantus
racemosa). The two live oak trees are being requested for removal due to the overhead
highvoltage electrical lines and the necessary grading for the development entrance. All
of the remaining trees on the lot are not native trees. Impact to the two native sycamore
trees will be little to none if the plans are followed as drawn.
It is the responsibility of the owner/agency to provide a copy of this tree protection plan
to any and all contractors and subcontractors that work within the drip line of the native
trees. It is highly recommended that each contractor sign and acknowledge this tree
protection plan.
The trees impacted by this project are numbered and identified on both the grading plan
and the tree protection spreadsheet. Trees are numbered on the grading plans and in the
field with an aluminum tag. Tree protection fencing is shown on the grading plan. In the
field trees to be saved have yellow tape. Trees suggested for removal have red tape.
Tree Rating System
A rating system of 1-10 was used for visually establishing the overall condition of each
tree on the spreadsheet. The rating system is defined as follows:
Ratine Condition
0 Deceased
Evidence of massive past failures, extreme disease and is in severe
decline. Pruning from overhead utility lines.
May be saved with attention to class 4 pruning, insect/pest
eradication and future monitoring.
ITEM NUMBER
DATE
3 ane past failures, some pests or structut�lefects that may be
mitigated by class IV pruning.
4 May have had minor past failures, excessive deadwood or minor
structural defects that can be mitigated with pruning.
Relatively healthy tree with little visual structural and or pest
defects.
6 Healthy tree that probably can be left in its natural state.
7-9 Have had proper arboricultural pruning and attention or have no
apparent structural defects.
10 Specimen tree with perfect shape, structure and foliage in a
protected setting (i.e. park, arboretum).
The following mitigation measures/methods must be fully understood and followed by
anyone working within the drip line of any native tree. Any necessary clarification will
be provided by us (the arborists) upon request.
2-16-10
1. Fencing: The proposed fencing shall be shown in orange ink on the grading
plan. It must be a minimum of 4' high chain link, snow or safety fence staked at the edge
of the drip line or line of encroachment for each tree or group of trees. The fence shall be
up before any construction or earth moving begins. The owner shall be responsible for
maintaining an erect fence throughout the construction period. The arborist(s), upon
notification, will inspect the fence placement once it is erected. After this time, fencing
shall not be moved without arborist inspection/approval. If the orange plastic fencing is
used, a minimum of four zip ties shall be used on each stake to secure the fence. All
efforts shall be made to maximize the distance from each saved tree.
2. Soil Aeration Methods: Soils within the drip line that have been compacted
by heavy equipment and/or construction activities must be returned to their original state
before all work is completed. Methods include water jetting, adding organic matter, and
boring small holes with an auger (18" deep, 2-3' apart with a 24" auger) and the
application of moderate amounts of nitrogen fertilizer. The arborist(s) shall advise.
3. Chip Mulch: All areas within the drip line of the trees that cannot be fenced
shall receive a 4-6" layer of chip mulch to retain moisture, soil structure and reduce the
effects of soil compaction.
4. Trenching Within Drip Line: All trenching within the drip line of native
trees shall be hand dug, augured or bored (for utilities). All major roots shall be avoided
whenever possible. All exposed roots larger than 1" in diameter shall be clean cut with
sharp pruning tools and not left ragged. A Mandatory meeting between the arborists and
grading contractor(s) must take place prior to work start.
5. Grading Within The Drip Line: Grading should not encroach within the drip
line unless authorized. Grading should not disrupt the normal drainage pattern around the
trees. Fills should not create a ponding condition and excavations should not leave the
tree on a rapidly draining mound.
ITEM NUMBER
DATE: 2-16-10
6. Exposed Rooter Any exposed roots shall be re -co -,;'.d the same day they
were exposed. If they cannot, they must be covered with burlap or another suitable
material and wetted down 2x per day until re -buried.
7. Paving Within The Drip Line: Pervious surfacing is preferred within the
drip line of any native tree. If pavers are required, the areas are outlined on the grading
plans. Pavers must be interlocking with a minimum of 10% void space backfilled with
pea gravel. Fabric shall be permeable. The % slope of the driveway may prohibit the
engineering of pavers for this project.
8. Equipment Operation: Vehicles and all heavy equipment shall not be
driven under the trees, as this will contribute to soil compaction. Also there is to be no
parking of equipment or personal vehicles in these areas. All areas behind fencing are off
limits unless pre -approved by the arborist.
9. Existing Surfaces: The existing ground surface within the drip line of all oak
trees shall not be cut, filled, compacted or pared, unless shown on the grading plans and
approved by the arborist.
10. Construction Materials And Waste: No liquid or solid construction waste
shall be dumped on the ground within the drip line of any native tree. The drip line areas
are not for storage of materials either.
11. Arborist Monitoring: An arborist shall be present for selected activities
(trees identified on spreadsheet and items bulleted below). The monitoring does not
necessarily have to be continuous but observational at times during these activities. It is
the responsibility of the owner(s) or their designee to inform us prior to these events so
we can make arrangements to be present. It is the responsibility of the owner to contract
(prior to construction) a locally licensed and insured arborist that will document all
monitoring activities.
• Pre -construction fence placement
• any utility or drainage trenching within any drip line
• All grading and trenching near trees requiring monitoring on the spreadsheet
• All driveway construction activities
• Tree removal operations
12. Pre -Construction Meeting: An on-site pre -construction meeting with the
Arborist(s), Owner(s), Planning Staff, and the earth moving team shall be required for
this project. Prior to final occupancy, a letter from the arborist(s) may be required
verifying the health/condition of all impacted trees and providing any recommendations
for any additional mitigation. The letter shall verify that the arborist(s) were on site for
all grading and/or trenching activity that encroached into the drip line of the selected
native trees, and that all work done in these areas was completed to the standards set forth
above.
ITEM NUMBER
DATE: 2-16-10
13. Pruning: Clas. )rumng includes deadwood removal a ; with selective
thinning to lesson wind resistance. Class 4 pruning includes -Crown reduction pruning
shall consist of reduction of tops, sides or individual limbs. A trained arborist shall
perform all pruning. No pruning shall take more than 25% of the live crown of any
native tree. Any trees that may need pruning for road/home clearance shall be pruned
prior to any grading activities to avoid any branch tearing.
14. Landscape: All landscape under the drip -line shall be drought tolerant or native
varieties. Lawns shall be avoided. All irrigation trenching shall be routed around drip
lines; otherwise above ground drip -irrigation shall be used. It is the owner's
responsibility to notify the landscape contractor regarding this mitigation.
15. Utility Placement: All utilities shall be placed down the road/driveway and
when possible outside of the drip lines. The arborist shall supervise trenching within the
drip line. All trenches in these areas shall be exposed by air spade or hand dug with
utilities routed under/over the roots.
The included spreadsheet includes trees listed by number, species and multiple stems if
applicable, diameter and breast height (4.5'), condition (scale from poor to excellent),
status (avoided, impacted, removed, exempt), percent of drip line impacted, mitigation
required (fencing, root pruning, monitoring), construction impact (trenching, grading),
recommended pruning and individual tree notes.
If all the above mitigation measures are followed, we feel there will be no additional
long-term significant impacts to the remaining native trees.
Please let us know if we can be of any future assistance to you for this project.
Steven G. Alvarez
Certified Arborist #WC 0511
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ITEM NUMBER
DATE: 2-16-10
ITEM NUMBER: 2
DATE: 2-16-10
ATTACHMENT 4: Draft Resolution PC 2010-0006
PLN 2009-1343 / TRP 2009-0134
DRAFT RESOLUTION NO. PC 2010-0006
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF ATASCADERO APPROVING
PLN 2009-1343 / TRP 2009-01349
TO REMOVE TWO (2) LIVE OAKS TOTALING 41 INCHES DBH
AT 4755 SAN ANSELMO ROAD
(MESSER)
WHEREAS, an application was received from Michael Messer, 8270 Toloso Road
Atascadero, CA 93422, (Property Owner/Applicant), for a Tree Removal Permit to remove two
(2) live oaks totaling 41 inches DBH (13 inches and 28 inches each) at 4755 San Anselmo Road,
APN 029-011-037; and,
WHEREAS, the proposed project has a General Plan Designation of Limited Single -
Family -X (LSF -X) and is in conformance with the Land Use Element of the General Plan and all
other applicable General Plan policies and Native Tree Ordinance; and,
WHEREAS; the Planning Commission reviewed the proposed Tree Removal application
on February 16, 2010, and considered testimony and reports from staff, the applicants, and the
public; and,
NOW THEREFORE, the Planning Commission of the City of Atascadero takes the
following actions:
SECTION 1. Findinlls for tree removal. The Planning Commission finds as follows:
(v). Trees proposed for removal are obstructing proposed improvements that could
not be reasonably designed to avoid the need for tree removal, as certified by a report
from the Site Planner and determined by the Community Development Department
based on the following factors:
• Early consultation with the City;
• Consideration of practical design alternatives;
• Provision of cost comparisons (from applicant) for practical design alternatives;
• If saving tree eliminates all reasonable uses of the property; or
• If saving the tree requires the removal of more desirable trees.
ITEM NUMBER: 2
DATE: 2-16-10
SECTION 2. Approval. The Planning Commission of the City of Atascadero, in a
regular session assembled on February 16, 2010, resolved to approve Tree Removal Permit 2009-
0134 to, subject to the following:
EXHIBIT A:
Conditions of Approval
EXHIBIT B:
Tree Protection Plan / Site Plan
EXHIBIT C:
Tree Mitigation Chart
On motion by Commissioner , and seconded by Commissioner
, the foregoing resolution is hereby adopted in its entirety by the
following roll call vote:
AYES: ( )
NOES: ( )
ABSENT: ( )
ADOPTED:
1► =1
CITY OF ATASCADERO, CA
Heather Moreno
Planning Commission Chairperson
ATTEST:
Warren Frace
Planning Commission Secretary
ITEM NUMBER
DATE: 2-16-10
EXHIBIT A: Conditions of Approval I Mitigation Monitoring
PLN 2009-1343 / TRP 2009-0134
Conditions of Approval
Timing
Responsibility
(Monitoring
PLN 2009-1343 / TRP 2009-0134
FM; Final Map
BL: Business License
PS: Planning Services
GP: Grading Permit
BS: Building Services
Address: 4755 San Anselmo Road
Fl: Building Permit
FI: Final Inspection
FD: Fire Department
PD: Police Department
TO: Temporary Occupancy
CE: City Engineer
F0: Final Occupancy
WW: Wastewater
CA: City Attorney
Standard Planning Conditions
1. The approval of this application shall become final, subject to the completion
FM
PS
of the conditions of approval, fourteen (14) days following the Planning
Commission approval unless prior to the time, an appeal to the decision is
filed as set forth in Section 9-1.111(b) of the Zoning Ordinance.
2. The applicant and/or subsequent owners shall defend, indemnify, and hold
On going
PS
harmless the City of Atascadero or its agents, officers, and employees
against any claim or action brought to challenge an approval by the City, or
any of its entities, concerning the proposed development.
3. Tree protection fencing as outlined in the arborist report, prepared by A&T
GP/FM
PS
Arborists shall be implemented prior to and during all construction activity.
4. The applicant shall pay either replant seven (7), five -gallon trees on site, or
BP
PS
make a mitigation payment of $341.67 into the tree fund prior to removal of
the trees.
ITEM NUMBER
DATE: 2-16-10
EXHIBIT B: Tree Protection Plan / Site Plan
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to -
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Proposed to be Removed
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ITEM NUMBER
DATE: 2-16-10
EXHIBIT C: Tree Mitigation Chart
Evergreen Native Trees (inches)
Deciduous Native Trees (inches)
TOWS
dbh notes
dbh
notes
1 28 -inches Tree #4
1 0
2 13 -inches Tree #3
2
3
3
15
15
Total 41 -inches
Total 0 -inches
41 -inches
Mitigation Requirement
req'd tree replacements: 7 five gal trees
req'd tree replacements
0 five gal trees
Proposed Replanting 0 five gal trees
Proposed Replanting
0 five gal trees
0 five gal trees
0 fifteen gal trees
0 fifteen gal trees
0 fifteen gal trees
0 box trees (24")
0 box trees (24")
0 box trees (24")
Remaining Mitigation 0 five gal trees
Remaining Mitigation
0 five gal trees
0 five gal-tnees_
Tree Fund Payment: $ 341.67
Tree Fund Payment: $
T:\- 09 PLNs\PLN 2009-1343 4755 San Anselmo\PLN 2009-1343 TRP San Anselmo SR.PC.doc
r$ 341.67 ` \
ITEM NUMBER: 3
DATE: 2-16-10
A tascadero Planning Commission
Staff Report — City Attorneys Office
Brian A. Pierik, City Attorney, 470-3400, bpierikoa atascadero.org
Municipal Code Title 5 and Title 9 Text Amendments
Ordinance Prohibiting the Establishment and Operation of
Medical Marijuana Facilities
PLN 2009-1348 / ZCH 2009-0157
(City of Atascadero)
SUBJECT:
The project consists of a proposed Municipal Code Text Amendment to adopt an
ordinance prohibiting the establishment and operation of medical marijuana facilities in
the City of Atascadero. Amendments to Title 5, Public Welfare Ordinance, and Title 9,
Planning and Zoning Ordinance, are proposed.
RECOMMENDATION:
The City Attorney recommends that the Planning Commission adopt Resolution PC
2010-0005, recommending that the City Council introduce an ordinance for first
reading, by title only, to approve PLN 2009-1348 / ZCH 2009-0157, which includes
amendments to Title 5, Public Welfare Ordinance, and Title 9, the Planning and Zoning
Ordinance to prohibit the establishment and operation of medical marijuana facilities in
the City of Atascadero, based on findings.
SITUATION AND FACTS:
1. Applicant: City of Atascadero
2. General Plan Designation: Citywide
3. Zoning District: Citywide
4. Environmental Status: Exempt from CEQA (Section 15061(b)(3)
Review for Exemption; not a project)
ITEM NUMBER: 3
DATE: 2-16-10
DISCUSSION:
Background:
On October 27, 2009, the City Attorney presented a Staff Report to the City Council
entitled "Report on the Establishment and Operation of Medical Marijuana Facilities and
Draft Ordinance Prohibiting Medical Marijuana Facilities", see Attachment 1. The Staff
Report to the City Council included 19 Attachments and was over 200 pages long. If
the Commissioners wish to review any of the 19 Attachments, the Attachments can be
found on the City's website.
(http://www.atascadero.org/index.php?option=com_counciImeetings&Itemid=190&page=meetings&mode=
view&meeting_id=813)
At the City Council meeting on October 27, 2009, the City Council approved the two
recommendations presented by the City Attorney which were:
(1) Adopt an interim urgency ordinance extending the moratorium on medical
marijuana facilities to September 8, 2010; and
(2) Refer to the Planning Commission for consideration of a draft ordinance to
repeal existing ordinances regarding medical marijuana and adopt an ordinance
prohibiting the establishment and operation of medical marijuana facilities in the
City.
As explained in the October 27, 2009, Staff Report to the City Council, the City Attorney
is recommending the adoption of the Draft Ordinance Prohibiting the Establishment and
Operation of Medical Marijuana Facilities in the City of Atascadero for the following
reasons:
1. Notwithstanding the adoption of the "Compassionate Use Act of 1996", also
known as Proposition 215, the sale, possession, cultivation and distribution of
marijuana is prohibited by federal law; and
2. Medical marijuana facilities have negative secondary effects, including significant
increases in traffic, crime and noise.
Since the City Council meeting of October 27, 2010, the sale, possession, cultivation
and distribution of marijuana is still prohibited by federal law and there is further
evidence of the negative secondary effects of medical marijuana facilities as confirmed
by the recent experience with a medical marijuana facility in Santa Barbara which is
discussed in the article from the Los Angeles Times dated January 11, 2010 (see
Attachment 2).
ITEM NUMBER: 3
DATE: 2-16-10
Analysis:
Attachment 18 to the Staff Report to the City Council of October 27, 2009, was a Draft
Ordinance Prohibiting the Establishment and Operation of Medical Marijuana Facilities
in the City of Atascadero. A PC Draft Ordinance recommending that the City Council
adopt the proposed amendments is included as Attachment 4 of this report.
The proposed Municipal Code amendments include the following sections:
(1) Amend Section 9-3.233 of Title 9, the Planning and Zoning Ordinance, to remove
medical marijuana dispensaries from the list of conditionally allowed uses in the
Commercial Service zoning district.
(2) Repeal of Chapter 13, entitled Medical Marijuana Dispensaries, of Title 5, the
Public Welfare Ordinance. The existing text of Chapter 13, which was
previously adopted to allow medical marijuana dispensaries in the commercial
service zone, shall be removed from the Municipal Code.
(3) Amend Chapter 13 of Title 5, the Public Welfare Ordinance, to include a new
ordinance prohibiting medical marijuana facilities within the City if Atascadero.
The new ordinance for Chapter 13 is proposed as follows:
ITEM NUMBER: 3
DATE: 2-16-10
Proposed
"Chapter 13
MEDICAL MARIJUANA FACILITIES
Sections:
5-13.101
Definition.
5-13.102
Purpose and intent.
5.13.103
Prohibited within the City of Atascadero
5.13.104
Violation - Separate Offense
5.13.105
Penalties
5.13.106
Civil Injunction
5-13.101 Definition.
(a) A medical marijuana dispensary, cooperative or collective (hereafter "Medical Marijuana
Facility") means any facility or location, whether fixed or mobile, where medical
marijuana is made available to and/or distributed by or to one or more of the following: a
"primary caregiver," "a qualified patient," or a person with an "identification card," as
these terms are defined in California Health and Safety Code section 11362.5 and
following.
(b) A Medical Marijuana Facility does not include the following facilities ("facilities"), or
delivery to such facilities, as long as such facilities are otherwise regulated by this code or
applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and
Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the
Health and Safety Code, a residential care facility for persons with chronic life-
threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and
Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of
Division 2 of the Health and Safety Code, a residential hospice, or a home health agency
licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as
any such use complies strictly with applicable law including, but not limited to, Health
and Safety Code section 11362.5 and following.
5-13.102 Purpose and intent.
The purpose and intent of this Chapter is to prohibit any Medical Marijuana Facility, as defined
above, within the City limits. It is recognized that it is a Federal violation under the Controlled
Substances Act to possess or distribute marijuana even if for medical purposes. Additionally,
there is evidence of an increased incidence of crime -related secondary impacts in locations
associated with a Medical Marijuana Facility, which is contrary to policies that are intended to
promote and maintain the public's health, safety, and welfare.
ITEM NUMBER: 3
DATE: 2-16-10
5.13.103 Prohibited within the City of Atascadero
The establishment or operation of a Medical Marijuana Facility as defined in this Chapter is
prohibited within the City limits. In addition, delivery of medical marijuana to any person,
except as allowed by this Chapter, is prohibited within the City limits."
5.13.104 Violation - Separate Offense
Any person who violates any provision of this Chapter shall be guilty of a separate offense for
each and every day during any portion of which any such person commits, continues, permits, or
causes a violation thereof, and shall be penalized accordingly.
5.13.105 Penalties
Violation of any provision of this Chapter is a misdemeanor unless the city attorney authorizes
issuance of an infraction citation or files a complaint charging the offense as an infraction or the
court upon the prosecutorial recommendation of the city attorney determines that the offense is
an infraction."
5.13.106 Civil Injunction
The violation of section 5.13.103 shall be and is hereby declared to be a public nuisance and
contrary to the public interest and shall, at the discretion of the City, create a cause of action for
injunctive relief.
Proposed Environmental Determination
The California Environmental Quality Act (CEQA) (Section 15061(b)(3) Review for
Exemption) exempts activities which are covered by the general rule that CEQA applies
only to projects which have the potential for causing a significant effect on the
environment. The proposed Text Amendment will not have any significant adverse
environmental impacts associated with this project application.
CONCLUSIONS:
At the City Council meeting on October 27, 2009, the Council referred to the Planning
Commission for consideration of a draft ordinance to repeal existing ordinances
regarding medical marijuana and adopt an ordinance prohibiting the establishment and
ITEM NUMBER: 3
DATE: 2-16-10
operation of medical marijuana facilities in the City. The prohibition of medical
marijuana facilities would be in compliance with federal law and would limit the negative
secondary effects, including significant increases in traffic, crime and noise which
medical marijuana facilities could have. Amendments are proposed to Section 9-3.233
of Title 9, the Planning and Zoning Ordinance, to remove medical marijuana
dispensaries from the list of conditionally allowed uses in the Commercial Service
Zoning District. Amendments are also proposed to Chapter 13 of Title 5, the Public
Welfare Ordinance, to prohibit Medical Marijuana Facilities throughout the City of
Atascadero.
ALTERNATIVES:
1. The Commission may recommend modifications of the Text Amendments to the
City Council.
2. The Commission may determine that more information is needed on some
aspect of the project and may refer the item back to staff and the City Attorney to
develop the additional information. The Commission should clearly state the
type of information that is required and move to continue the item to a future
date.
3. The Commission may recommend the City Council deny the proposed Text
Amendments.
ITEM NUMBER
DATE: 2-16-10
ATTACHMENTS:
Attachment 1: Staff Report to City Council on October 27, 2009
Attachment 2: Los Angeles Times article dated January 11, 2010
Attachment 3: Categorical Exemption
Attachment 4: PC Draft Resolution 2010-0005 Recommending the City Council
Adopt Amendments to the Municipal Code to Prohibit the
Establishment and Operation of Medical Marijuana Facilities
ITEM NUMBER
DATE: 2-16-10
Attachment 1: Staff Report to City Council on October 27, 2009
See following
ITEM NUMBER
DATE: 2-16-10
Attachment 2: Los Angeles Times article dated January 11, 2010
S��z� �n�eles it�ie�
Santa Barbara pot dispensary shut down, owner and workers arrested
January 11, 2010 1 5:19 pm
Santa Barbara police today said they shut down a medical marijuana
dispensary named Humanity after public complaints triggered an
undercover investigation.
The owner of the business, Brandon Timothy Fox, and five employees were
arrested last week on suspicion of various drug offenses. Police said the
business violated state laws requiring pot shops to check customer
identification cards.
An undercover investigator also was able to make purchases with forged
documents, according to a department spokesman. In connection with the
arrests, police said they seized 281 doses of steroids and 63 pounds of
marijuana they found buried in a Santa Ynez backyard.
-- Steve Chawkins
ITEM NUMBER
DATE: 2-16-10
Attachment 3: Categorical Exemption
TO: File
FROM: City of Atascadero
Community Development Department
6907 El Camino Real
Atascadero, CA 93422
SUBJECT: Filing of Notice of Determination in Compliance with CEQA Sections 15061and 15062
Project Title
MUNICIPAL CODE TEXT AMENDMENT; PLN 2009-1348
Project Location (Include County)
Citywide, Atascadero, CA 93422 (San Luis Obispo County)
Project Description
Municipal Code Text Amendment to adopt an ordinance prohibiting the establishment and operation of
medical marijuana facilities in the City ofAtascadero. Amendments to Title S, Public Welfare Ordinance,
and Title 9, Planning and Zoning Ordinance.
Name of Public Agency Approving Project
City ofAtascadero
Name of Person or Agency Carrying Out Project
City Attorney & Community Development Department, City ofAtascadero
Exempt Status:
Reasons why project is exempt:
The California Environmental Quality Act (CEQA) (Section 15061(b)(3) Review for Exemption)
exempts activities which are covered by the general rule that CEQA applies only to projects, which have
the potential for causing a significant effect on the environment.
Date: February 5, 2010
Callie Taylor
Associate Planner
CITY OF ATASCADERO
�-
NOTICE OF EXEMPTION
'._
6907 El Camino Real Atascadero, CA 93422 805.461.5000
TO: File
FROM: City of Atascadero
Community Development Department
6907 El Camino Real
Atascadero, CA 93422
SUBJECT: Filing of Notice of Determination in Compliance with CEQA Sections 15061and 15062
Project Title
MUNICIPAL CODE TEXT AMENDMENT; PLN 2009-1348
Project Location (Include County)
Citywide, Atascadero, CA 93422 (San Luis Obispo County)
Project Description
Municipal Code Text Amendment to adopt an ordinance prohibiting the establishment and operation of
medical marijuana facilities in the City ofAtascadero. Amendments to Title S, Public Welfare Ordinance,
and Title 9, Planning and Zoning Ordinance.
Name of Public Agency Approving Project
City ofAtascadero
Name of Person or Agency Carrying Out Project
City Attorney & Community Development Department, City ofAtascadero
Exempt Status:
Reasons why project is exempt:
The California Environmental Quality Act (CEQA) (Section 15061(b)(3) Review for Exemption)
exempts activities which are covered by the general rule that CEQA applies only to projects, which have
the potential for causing a significant effect on the environment.
Date: February 5, 2010
Callie Taylor
Associate Planner
ITEM NUMBER: 3
DATE: 2-16-10
Attachment 4: PC Draft Resolution 2010-0005 Recommending the City Council Adopt Amendments to the
Municipal Code to Prohibit the Establishment and Operation of Medical Marijuana Facilities
DRAFT RESOLUTION PC 2010-0005
RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF ATASCADERO, CALIFORNIA,
RECOMMENDING THAT THE CITY COUNCIL AMEND
THE ATASCADERO MUNICIPAL CODE BY APPROVING PLN 2009-13489
AMENDING CHAPTER 13 OF TITLE 5, PUBLIC WELFARE,
AND SECTION 9-3.233 OF THE PLANNING AND ZONING ORDINANCE,
TO PROHIBIT MEDICAL MARIJUANA FACILITIES
(Citywide/City of Atascadero)
WHEREAS, an application has been received from the City of Atascadero (6907 El
Camino Real, Atascadero CA 93422), to consider Municipal Code Text Amendments which
include a proposed ordinance to prohibit the establishment and operation of medical marijuana
facilities within the City of Atascadero; and,
WHEREAS, in 1996 the voters of the State of California passed the "Compassionate Use
of Marijuana Law" which allows for the use of marijuana for medical purposes; and
WHEREAS, in 2003, the Legislature approved SB 420, which provided additional
statutory guidance for those involved with medical marijuana use, and also authorized cities to
enact rules and regulations with regard to medical marijuana consistent with California law; and
WHEREAS, the United States Supreme Court in United States v. Oakland Cannabis
Buyers' Cooperative (2001) 532 U.S. 483, held that the Federal Controlled Substances Act
continues to prohibit marijuana use, distribution, and possession, and that no medical necessity
exceptions exist to those prohibitions; and
WHEREAS, the United States Supreme Court held that federal laws which ban the use
of marijuana for medical purposes are constitutional in the case of Gonzales v. Raich (2005) 545
U.S. 1; and
WHEREAS, the City Council has reviewed and considered the Staff Report prepared by
the City Attorney's Office, and supporting documents, regarding the secondary effects of medical
marijuana dispensaries, including reports of criminal activity, such as robberies, assaults,
burglaries, and the sale of illegal drugs, murder and attempted murder, which is contrary to
policies that are intended to promote and maintain the public's health, safety, and welfare; and
ITEM NUMBER
DATE: 2-16-10
WHEREAS, in some counties, medical marijuana delivery services are currently
provided, which is not permitted by either state or federal law; and
WHEREAS, a "qualified patient," as defined in subsection (f) of section 11362.7 of the
California Health & Safety Code, and a "primary caregiver," as defined in subsection (d) of
section 11362.7, is permitted to possess an amount of marijuana consistent with the patient's
needs, and state law does not expressly prohibit qualified patients from growing marijuana in an
amount consistent with the patient's needs; and
WHEREAS, at its meeting on September 9, 2009, the City Council adopted Ordinance
No. 545, which imposed a temporary 45 -day moratorium on the establishment and operation of
medical marijuana facilities within the City until October 23, 2009; and
WHEREAS, at its meeting of October 27, 2009, the City Council voted to extend the
moratorium for 10 months and 15 days and gave direction to staff to submit this draft ordinance
to the Planning Commission for review and recommendation; and
WHEREAS, a Notice of Exemption was prepared for the project and made available for
public review in accordance with the requirements of the California Environmental Quality Act
(CEQA); and,
WHEREAS, the Planning Commission has determined that it is in the best interest of the
City to enact this amendment to Title 5, Public Welfare, and Title 9, Planning and Zoning, of the
Municipal Code; and,
WHEREAS, the laws and regulations relating to the preparation and public notice of
environmental documents, as set forth in the State and local guidelines for implementation of the
California Environmental Quality Act (CEQA) have been adhered to; and,
WHEREAS, a timely and properly noticed Public Hearing upon the subject Planning and
Zoning Text Change application was held by the Planning Commission of the City of Atascadero
at which hearing evidence, oral and documentary, was admitted on behalf of said Planning and
Zoning Text Amendments; and,
WHEREAS, the Planning Commission of the City of Atascadero, at a Public Hearing
held on February 16, 2010, studied and considered PLN 2009-1348 / ZCH 2009-0157; and,
NOW THEREFORE, the Planning Commission of the City of Atascadero takes the
following actions:
SECTION 1. Findings for Approval of a Municipal Code Text Change. The
Planning Commission finds as follows:
1. The Municipal Code Text Amendment is consistent with General Plan policies and all
other applicable ordinances and policies of the City.
ITEM NUMBER: 3
DATE: 2-16-10
2. This Amendment of the Planning and Zoning Ordinance and the Public Welfare
Ordinance will provide for the orderly and efficient use of lands where such
development standards are applicable.
3. This Ordinance and Amendments are consistent with protection of the public interest,
health, safety, convenience, and welfare of the City.
4. The Text Change will not, in itself, result in significant environmental impacts and is
categorically exempt from environmental review pursuant to the California
Environmental Quality Act ("CEQA") Guidelines Section 15061(b)(3).
5. The prohibition of medical marijuana facilities and delivery of medical marijuana in
the City is consistent with federal law. The sale, possession, cultivation and
distribution of cannabis is prohibited by federal law, specifically 21 U.S.C. sections
812 and 841, part of the Controlled Substances Act, and marijuana continues to be a
prohibited Schedule I drug for which there is no legally accepted medical use.
6. The impacts associated with medical marijuana facilities are detrimental to the health,
safety and welfare of the citizens such that no area of the City is an acceptable area in
which to introduce those types of impacts.
SECTION 2. Recommendation of Approval. The Planning Commission of the City of
Atascadero, in a regular session assembled on February 16, 2010, resolved to recommend that the
City Council introduce for first reading by title only, an ordinance that would amend the
Atascadero Municipal Code with the following:
Amendment of Section 9-3.233 of the Planning and Zoniniz Ordinance: Remove Medical
Marijuana Dispensaries from the list of conditionally allowed uses in the Commercial Service
zoning district consistent with the following:
9-3.233 Conditional Uses.
The following uses may be allowed in the Commercial Service Zone. The
establishment of conditional uses shall be as provided by Section 9-2.109
(Conditional use permits):
(a) Amusement services;
(b) Warehousing;
(c) Vehicle and freight terminal;
(d) Service stations (see Section 9-6.164);
(e) Caretaker residence (see Section 9-6.104);
(f) Transit stations and terminals;
(g) Public assembly and entertainment;
(h) Indoor recreation services;
(i) Outdoor recreation services (see Section 9-6.123);
(j) Apparel and finish products, where areas of use exceed five
thousand (5,000) square feet;
ITEM NUMBER
DATE: 2-16-10
(k) Sports assembly;
(1) Electronic and scientific instruments, where areas of use exceed
five thousand (5,000) square feet;
(m) Furniture and fixtures, where areas of use exceed five thousand
(5,000) square feet;
(n) Glass products manufacturing;
(o) Pipelines;
(p) Stone and cut stone products, where all areas of use exceed five
thousand (5,000) square feet;
(q) Auto dealers (new and used) and supplies (see Section 9-6.163.);
(r) Storage yard (see Section 9-6.140);
"(s) MediGal marijuana dispensary (see Chapter 13 of Title 5)."
Repeal of Chapter 13 of Title 5: Chapter 13 of Title 5, Public Welfare, entitled Medical
Marijuana Dispensaries is hereby repealed. The existing text of Chapter 13 shall be removed
from the Municipal Code.
Amendment to Chapter 13, Title 5. Chapter 13 of Title 5 shall be replaced with revised text.
The new ordinance, entitled Medical Marijuana Facilities, shall read as follows:
"Chapter 13
MEDICAL MARIJUANA FACILITIES
Sections:
5-13.101 Definition.
5-13.102 Purpose and intent.
5.13.103 Prohibited within the Citv of Atascadero
5.13.104 Violation - Separate Offense
5.13.105 Penalties
5.13.106 Civillnjunction
5-13.101 Definition.
(a) A medical marijuana dispensary, cooperative or collective (hereafter
"Medical Marijuana Facility") means any facility or location, whether fixed
or mobile, where medical marijuana is made available to and/or
distributed by or to one or more of the following: a "primary caregiver," "a
_qualified patient," or a person with an "identification card," as these terms
are defined in California Health and Safety Code section 11362.5 and
following.
ITEM NUMBER
DATE: 2-16-10
(b) A Medical Marijuana Facility does not include the followinq facilities
("facilities"), or delivery to such facilities, as long as such facilities are
otherwise regulated by this code or applicable law: a clinic licensed
pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a
health care facility licensed pursuant to Chapter 2 of Division 2 of the
Health and Safety Code, a residential care facilitypersons with chronic
life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of
the Health and Safety Code, a residential care facility for the elderly
licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety
Code, a residential hospice, or a home health agency licensed pursuant to
Chapter 8 of Division 2 of the Health and Safety Code, as long as any
such use complies strictly, w�pplicable law including, but not limited to,
Health and Safety Code section 11362.5 and following.
5-13.102 Purpose and intent.
The purpose and intent of this Chapter is to prohibit any Medical Marijuana
Facility, as defined above, within the City limits. It is recognized that it is a
Federal violation under the Controlled Substances Act to possess or distribute
marijuana even if for medical purposes. Additionally, there is evidence of an
increased incidence of crime -related secondary impacts in locations associated
with a Medical Marijuana Facility, which is contrary to policies that are intended
to promote and maintain the Dublic's health. safety. and welfare.
5.13.103 Prohibited within the Citv of Atascadero
The establishment or operation of a Medical Marijuana Facility as defined in this
Chapter is prohibited within the City limits. In addition, delivery of medical
marijuana to any person, except as allowed by this Chapter, is prohibited within
the Citv limits."
5.13.104 Violation - Separate Offense
Any person who violates any provision of this Chapter shall be guilty of a
separate offense for each and every day during any portion of which any such
person commits, continues, permits, or causes a violation thereof, and shall be
penalized accordingly.
5.13.105 Penalties
Violation of any provision of this Chapter is a misdemeanor unless the city
attornev authorizes issuance of an infraction citation or files a complaint charaina
ITEM NUMBER: 3
DATE: 2-16-10
the offense as an infraction or the court upon the prosecutorial recommendation
of the city attorney determines that the offense is an infraction."
5.13.106 Civil Iniunction
The violation of section 5.13.103 shall be and is hereby declared to be a public
nuisance and contrary to the public interest and shall, at the discretion of the
City, create a cause of action for injunctive relief."
SECTION 3. Severability. If any section, subsection, sentence, clause, or phrase of the
Ordinance is, for any reason, found to be invalid or unconstitutional, such finding shall not affect
the remaining portions of this Ordinance.
BE IT FURTHER RESOLVED that a copy of this Resolution be delivered forthwith by
the Planning Commission Secretary to the City Council of the City of Atascadero.
On motion by Commissioner , and seconded by Commissioner
the foregoing resolution is hereby adopted in its entirety by the following roll call vote:
AYES: ( )
NOES: ( )
ABSTAIN: ( )
ABSENT: ( )
ADOPTED:
CITY OF ATASCADERO, CA
Heather Moreno
Planning Commission Chairperson
Attest:
Warren M. Frace
Planning Commission Secretary
\\Cityhall\cdvlpmnt\- 09 PLNs\PLN 2009-1348 Medical Marijuana\Medical Marijuana Facilities Ordinance PC.SR.2.16.2010.doc
Atascadero City Council
Staff Report - City Attorney's Office
ITEM NUMBER: B - 1
DATE: 10/27/09
Report on Moratorium on the Establishment and Operation of
Medical Marijuana Facilities and
Draft Ordinance Prohibiting Medical Marijuana Facilities
RECOMMENDATIONS:
Council:
1. Adopt an Interim Urgency Ordinance extending the 45 -day moratorium on the
establishment and operation of medical marijuana facilities for a period of 10
months and 15 days through September 8, 2010; and,
2. Refer to the Planning Commission for consideration of a draft ordinance to repeal
existing ordinances regarding medical marijuana and adopt an ordinance
prohibiting the establishment and operation of medical marijuana facilities in the
City.
REPORT -IN -BRIEF:
In 1996, the voters of California approved by initiative "The Compassionate Use Act of
1996," also known as Proposition 215. The purpose of Proposition 215 was to allow
seriously ill Californians to obtain and use medical marijuana under certain specified
circumstances. In 2003, the Legislature approved SB 420, which provided additional
statutory guidance for those involved with medical marijuana use and also authorized
cities to enact rules and regulations with regard to medical marijuana consistent with
California law.
Despite the passage of Proposition 215, the United States Supreme Court in United
States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, held that the
Federal Controlled Substances Act continues to prohibit marijuana use, distribution, and
possession, and that no medical necessity exceptions exist to those prohibitions. And
in 2005, the United States Supreme Court held that federal laws which ban the use of
ITEM NUMBER: B - 1
DATE: 10/27/09
marijuana for medical purposes are constitutional in the case of Gonzales v. Raich
(2005) 545 U.S. 1.
Some cities where Medical Marijuana Facilities have been established report increases
in illegal drug activity, illegal drug sales, robbery of persons leaving dispensaries,
loitering around dispensaries, falsely obtaining "identification cards" to qualify for
medical marijuana, and other increases in criminal activity.
On September 8, 2009, the City Council voted to adopt a 45 -day moratorium on the
establishment or operation of Medical Marijuana Facilities to enable planning and legal
staff time to study the issues further.
California Government Code Section 65858(d) requires that ten days prior to the
expiration of that interim ordinance or any extension, the legislative body shall issue a
written report describing the measures taken to alleviate the condition which led to the
adoption of the ordinance.
This staff report is submitted to the Council pursuant to Government Code Section
65858(d) and to present to the City Council proposed motions to extend the moratorium
10 months and 15 days and refer to the Planning Commission for consideration of a
draft ordinance to repeal existing ordinances regarding Medical Marijuana and adopt an
ordinance prohibiting the establishment and operation of Medical Marijuana Facilities in
the City.
DISCUSSION:
Research Regarding Federal Law and Secondary Effects of Medical Marijuana Facilities
Currently, the sale, possession, cultivation and distribution of cannabis is prohibited by
federal law, specifically 21 U.S.C. sections 812 and 841, part of the Controlled
Substances Act. Marijuana continues to be a prohibited Schedule I drug for which there
is no legally accepted medical use. The U.S. Drug Enforcement Administration ("DEA")
has raided several medical marijuana dispensaries in various California cities, despite
the State's passage of the Compassionate Use Act. The DEA's Office of Chief
Counsel's Opinion Letter, dated, March 31, 2006, provides that "the knowing or
intentional manufacture, possession, or distribution of marijuana, or aiding and abetting
or participating in conspiracy to engage in such conduct, violates federal law regardless
of any state law authorizing such conduct." (Attachment 1, pg. 2)
Beyond the legal issues involved with medical marijuana, several California cities that
have permitted the establishment of medical marijuana dispensaries have found that
such medical marijuana dispensaries have resulted in negative secondary effects,
including significant increases in traffic, crime and noise. (Attachments 2 pg. 1-19; 3,
pg. 8-14; 4, pg. 7-8; 13, pg. 1-28; and 15, pg. 3)
"Of equal concern are the secondary effects of these dispensaries and store -front
ITEM NUMBER: B - 1
DATE: 10/27/09
cooperatives. Throughout the state, many violent crimes have been committed that can
be traced to their proliferation." (Attachment 4, pg. 7)
For example, there have been several reports of serious criminal activity, such as
robberies, assaults, burglaries, the sale of illegal drugs, murder and attempted murder.
Moreover, "[i]increased noise and pedestrian traffic, including nonresidents in pursuit of
marijuana, and out of area criminals in search of prey, are commonly encountered just
outside marijuana dispensaries, as well as drug-related offenses in the vicinity ..."
(Attachment 3, pg. 9)
The California Police Chief's Association has also documented other secondary impacts
in the immediate vicinity of dispensaries, such as street dealers lurking about
dispensaries to offer a lower price for marijuana, marijuana smoking in public and in
front of children, loitering and increased crime. (Attachment 3, pg. 11)
Moreover, the California Police Chief's Association has reported adverse secondary
impacts in the community at large, such as unjustified and fictitious physician
recommendations, the proliferation of grow houses, increased gang activities,
exposures of minors to marijuana, impaired public health, and decreased quality of life
in deteriorating neighborhoods. (Attachment 3, pg. 11-14)
Municipal Liability
A city or county that allows the establishment and operation of dispensaries faces
potential liability because they are arguably aiding and abetting in criminal violations of
federal law. (Attachments 3, pg. 18-19 and 4, pg. 8) Although we are not aware of any
cities or counties that have been prosecuted for aiding and abetting, this is a risk that
needs to be recognized in evaluating the City's options.
California Attorney General Guidelines
According to the California Attorney General's Guidelines for the Security and Non -
Diversion of Marijuana Grown for Medical Use, unless they meet stringent
requirements, dispensaries cannot reasonably claim to be cooperatives or collectives.
(Attachments 3, pg. 5 and 5, pg. 9-11) "Although medical marijuana dispensaries" have
been operating in California for years, dispensaries, as such, are not recognized under
the law ... a properly organized and operated collective or cooperative that dispenses
medical marijuana through a storefront may be lawful under California law, but
dispensaries that do not substantially comply with the guidelines set forth ... above are
likely operating outside the protections of [the Compassionate Use Act] and the [Medical
Marijuana Program], and that the individuals operating such entities may be subject to
arrest and criminal prosecution under California law." (Attachment 3, pg. 11)
The exemption for state criminal prosecution only apply to three categories of persons:
(a) qualified patients; (b) persons with valid identification cards, and (c) the designated
primary caregivers of qualified patients and persons with identification cards, who
associate within the State of California in order collectively or cooperatively to cultivate
marijuana for medical purposes. CA Health & Safety Code § 11362.775. Moreover, the
ITEM NUMBER: B - 1
DATE: 10/27/09
Medical Marijuana Program Act specifies that collectives, cooperatives or other groups
shall not profit from the sale of marijuana.
Legally recognized cooperatives generally possess the following features: "control and
ownership of each member is substantially equal; members are limited to those who will
avail themselves of the services furnished by the association; transfer of ownership
interests is prohibited or limited; capital investment receives either no return or a limited
return; economic benefits pass to the members on a substantially equal basis or on the
basis of their patronage of the association; members are not personally liable for
obligations of the association in the absence of a direct undertaking or authorization by
them; death, bankruptcy, or withdrawal of one or more members does not terminate the
association; and [the] services of the association are furnished primarily for the use of
the members." (Attachment 3, pg. 5)
The Attorney General's Guidelines provide that "cooperatives should not purchase
marijuana from, or sell to, non-members; instead they should only provide a means for
facilitating or coordinating transactions between members." (Attachment 5, pg. 8)
However, several reports have found that "it is doubtful that any of the storefront
marijuana businesses currently existing in California can claim that status.
Consequently, they are not primary caregivers and are subject to prosecution under
both California and federal laws." (Attachment 3, pg. 6-7)
Ordinances in San Luis Obispo County
Over the last three and a half years, six of the seven cities in San Luis Obispo County
have passed ordinances prohibiting the establishment or operation of medical marijuana
dispensaries. (Attachments 6-11)
The only city in the County which has not adopted an ordinance prohibiting the
establishment or operation of medical marijuana dispensaries, is the City of Atascadero.
The City of Atascadero's Municipal Code Chapter 13, Title 5, does allow for the
establishment of a medical marijuana dispensary, upon obtaining a conditional use
permit.
The County of San Luis Obispo regulates medical marijuana dispensaries by requiring a
Minor Use Permit and imposing design and operational standards on the establishment
of such facilities. (Attachment 12)
The City of EI Cerrito
The City of EI Cerrito, in Contra Costa County, has studied medical marijuana
dispensaries and its secondary effects. Over the past couple of years, the EI Cerrito
Police Department has studied the secondary effects of medical marijuana
dispensaries, including criminal activity. (Attachment 13, pg. 1-28)
As a result of the negative secondary effects of medical marijuana dispensaries, the
City of EI Cerrito adopted a prohibition on medical marijuana dispensaries on July 17,
2006. (Attachment 14)
ITEM NUMBER: B - 1
DATE: 10/27/09
The City of Norwalk
The City of Norwalk, in Los Angeles County, has also studied medical marijuana and its
negative secondary effects. In its Staff Report of June 3, 2008, the City of Norwalk
noted secondary impacts, including:
• Street level dealers trying to sell to those going to the dispensary at a lower price;
• People smoking marijuana in public around the facility;
• People coming into the community from out of town to obtain marijuana;
• Marijuana DUI by people who have obtained it from the dispensary;
• Burglary attempts into the dispensary building;
• Criminal element drawn to the dispensary location;
• Marijuana dealers who have a doctor's recommendation are purchasing from the
dispensary and then conducting illegal street sales to those who do not have a
doctor's recommendation;
• Street criminals in search of the drugs are robbing medical use patients for their
marijuana as they leave the dispensary;
• Thefts and robberies around the location occur to support the illegal and legal
drug commerce;
• Businesses next door to the facilities are negatively affected because of the
concentration of criminals that sometimes associate with the dispensary; and
• Complaints of other illegal drugs that are being sold inside dispensaries.
(Attachment 15, pg. 3)
Given the concerns from the secondary effects of medical marijuana dispensaries, the
City of Norwalk adopted an ordinance prohibiting medical marijuana dispensaries in all
zones in the city on June 17, 2008. (Attachment 16).
Survey by City of Redding
The City received on October 1, 2009 a survey conducted by the City of Redding of
several cities regarding their ordinances on medical marijuana dispensaries. See
Attachment 19. As noted in the survey, the overwhelming majority of cities have
ordinances which either ban medical marijuana dispensaries or they have a
moratorium. This finding is consistent with the ordinances of the other 6 cities in San
Luis Obispo County which have a ban on medical marijuana dispensaries.
CONCLUSION:
The measures taken by the City Council to alleviate the condition which led to the
adoption of the 45 -day moratorium ordinance include a review and analysis of the
Federal law and the negative secondary effects of medical marijuana dispensaries, as
more fully described in this report.
Due to the conflict between federal law and California law, as well as the community
and statewide concerns regarding the negative effects that follow the establishment of
medical marijuana dispensaries, it is necessary for the City to extend the moratorium for
a period of 10 months and 15 days to enable planning and legal staff to study the issues
ITEM NUMBER: B - 1
DATE: 10/27/09
further. A copy of the Extension Ordinance is included as Attachment 17. Because this
is an urgency ordinance, a 4/5ths vote of the City Council is required. The findings
necessary to adopt an urgency measure are set forth in Section 1 of the proposed
Extension Ordinance.
In addition, it is recommended that the City Council refer to the Planning Commission
for review and consideration of a Draft Ordinance to repeal existing ordinances
regarding medical marijuana and adopt an ordinance prohibiting the establishment and
operation of medical marijuana facilities in the City. A copy of the Draft Ordinance is
included as Attachment 18.
FISCAL IMPACT:
No Fiscal Impact.
ALTERNATIVES:
1. Take no action.
2. Adopt the Moratorium Extension for a period of 10 months and 15 days without
referral to the Planning Commission the Draft Ordinance on the Prohibition of the
Establishment and Operation of Medical Marijuana Facilities in the City.
3. Adopt the Moratorium Extension for a period of 10 months and 15 days with
referral to the Planning Commission of the Draft Ordinance on the Prohibition of
the Establishment and Operation of Medical Marijuana Facilities in the City.
ATTACHMENTS:
1. U.S. Department of Justice, Drug Enforcement Administration, Office of Chief
Counsel's Opinion Letter. March 31, 2006.
2. Medical Marijuana Dispensaries and Associated Issues. Presented to the
California Police Chiefs Association. September to December 2007.
3. White Paper on Marijuana Dispensaries. California Police Chiefs Association's
Task Force on Marijuana Dispensaries. 2009.
4. White Paper on Medical Marijuana: History and Current Complications.
Riverside County District Attorney's Office. September 2006.
5. California Attorney General's Guidelines for the Security and Non -Diversion of
Marijuana Grown for Medical Use. August 2008.
ITEM NUMBER: B - 1
DATE: 10/27/09
6. Citv of Grover Beach, Ord. No. 06-06. April 17, 2006.
7. Citv of Paso Robles, Ord. No. 926 N.S. February 6, 2007.
8. City of Pismo Beach, Ord. No. 2007-001. February 20, 2007.
9. City of Arroyo Grande, Ord. No. 599. May 27, 2008.
10. City of San Luis Obispo, Ord. No. 1466. April 27, 2009.
11. City of Morro Bay, Ord. No. 547. April 27, 2009.
12. County of San Luis Obispo, Ord. No. 3114. February 6, 2007.
13. EI Cerrito Police Department Memorandum on Marijuana Information. April 18,
2007.
14. City of EI Cerrito, Ord. No. 2006-8 (2006. July 17, 2006.
15. City of Norwalk City Council Agenda Report on Medical Marijuana Dispensaries.
June 3, 2008.
16. City of Norwalk, Ord. No. 08-1610. June 17, 2008.
17. City of Atascadero. Draft Interim Urgency Ordinance Extending the 45 -day
Moratorium on the Establishment and Operation of Medical Marijuana Facilities
for a period of 10 months and 15 days throuah September 8. 2010.
18. City of Atascadero. Draft Ordinance Prohibiting the Establishment and Operation
of Medical Marijuana Facilities in the City.
19. Medical Marijuana Dispensaries Listserve Survey Results, Conducted by City of
Redding and Received October 1, 2009