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HomeMy WebLinkAboutPC_2006-03-07_AgendaPacketCITY OF ATASCADERO PLANNING COMMISSION AGENDA Regular Meeting Tuesday, March 7, 2006 — 7:00 P.M. City Hall Council Chambers 6907 El Camino Real Atascadero, California CALL TO ORDER Pledge of Allegiance Roll Call: Chairperson Beraud Vice Chairperson O'Keefe Commissioner Fonzi Commissioner Jones Commissioner Kelley Commissioner Porter Commissioner Slane PLANNING COMMISSION BUSINESS APPROVAL OF AGENDA 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. 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 five 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) City of Atascadero Planning Commission Agenda CONSENT CALENDAR Regular Meeting March 7, 2006 Page 2 of 4 (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) 1. APPROVAL OF MINUTES OF THE REGULAR PLANNING COMMISSION MEETING ON FEBRURARY 21, 2006. COMMUNITY DEVELOPMENT STAFF REPORTS PUBLIC HEARINGS (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 five 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).) 2. ZONE CHANGE 2006-0114 Applicant: City of Atascadero, 6907 El Camino Real, Atascadero, CA 93422 Phone: 461-5000 Project Title: Zone Change 2006-0114, Zone Text Amendment Project The proposed Zoning Code Text Amendment may change sections of the Atascadero Location: Municipal Zoning Code within the CR (Commercial Retail) and CS (Commercial Services) Zoning Districts. Project The proposed project consists of an application for a Zone Text Amendment to update Description: allowable and conditionally allowed uses within Commercial Zoning Districts throughout the City consistent with the General Plan. Amend Conditional Uses to include: Medical Marijuana Dispensary (See Chapter 12 of Title 5). It is the purpose and intent of this proposed Ordinance to regulate Medical Marijuana Dispensaries in order to promote the health, safety, morals, and general welfare of the residents and businesses within the City. It is neither the intent nor effect of this Ordinance to condone or legitimize the use of marijuana. General Plan Land Use Designation: General Commercial (GC) Zoning Districts: Commercial Retail (CR) and Commercial Service (CS) Proposed Based on the initial study prepared for the project, a Negative Declaration is proposed. Environmental The proposed Negative Declaration is available for public review from 2/10/06 through Determination: 3/1/06 at 6907 El Camino Real, Community Development Department, from 8:00 a.m. to 5:00 p.m., Monday through Friday. COMMISSIONER COMMENTS AND REPORTS City of Atascadero Planning Commission Agenda DIRECTOR'S REPORT 3. VARIANCE 2005-0009 DETERMINATION Regular Meeting March 7, 2006 Page 3 of 4 Applicant: Eric Roy, 9186 Palomar Ave., Atascadero, CA 93422 Project Title: Variance 2005-0009 Project 9186 Palomar Ave., Atascadero, CA 93422, APN 029-201-026 Location: Project A Variance request to allow a front yard fence to be five (5') to six (6') feet in height. Fencing Description: within the front setback is currently limited to three (3') feet in height. General Plan Designation: SFR -Y Zoning District: RSF-Y Proposed CATEGORICAL EXEMPTION: The project qualifies for a Class 5 Categorically Exemption Environmental under the provisions of the California Environmental Quality Act, CEQA section 15305. Minor Determination Alterations in Land Use Limitations. ADJOURNMENT The next regular meeting of the Planning Commission will be on March 21, 2006 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 March 7, 2006 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 Annex business hours at the Community Development counter 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. 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, (805) 461-5000, or the City Clerk's Office, (805) 461-5000. 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 AGENDA ITEMS 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 podium. If you wish to speak for, against, or comment in any way: • You must approach the podium and be recognized by the Chairperson • Give your name and address (not required) • Make your statement • All comments should be made to the Chairperson and Commission • All comments limited to 5 minutes (unless changed by the Commission) • No one may speak for a second time until everyone wishing to speak has had an opportunity to do so, and no one may speak more than twice on any item. If you wish to use a computer presentation to support your comments, you must notify the Community Development Department at least 24 hours prior to the meeting. Access to hook up your laptop to the City's projector will 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 Chairperson 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 Council. TO SPEAK ON SUBJECTS NOT LISTED ON THE AGENDA Under Agenda item, "PUBLIC HEARINGS", the Chairperson will call for anyone from the audience having business with the Commission to: • Please approach the podium and be recognized • Give your name and address (not required) • State the nature of your business This is the time items not on the Agenda may be brought to the Commission's attention. A maximum of 30 minutes will be allowed for Community Forum (unless changed by the Commission). CALL TO ORDER ITEM NUMBER: 1 DATE: 3-7-06 CITY OF ATASCADERO PLANNING COMMISSION DRAFT MINUTES Regular Meeting Tuesday, February 21, 2006 — 7:00 P.M. Chairperson Beraud called the meeting to order at 7:03 p.m. and Vice Chairperson O'Keefe led the Pledge of Allegiance. ROLL CALL Present: Commissioner Fonzi, Jones, Kelley, Porter, Slane, O'Keefe and Chairperson Beraud Absent: None Staff Present: Community Development Director Warren Frace, Public Works Director/City Engineer Steve Kahn, Deputy Community Development Director Steve McHarris, Associate Planner Kelly Gleason, Associate Planner Kerry Margason, and Recording Secretary Grace Pucci. PLANNING COMMISSION BUSINESS APPROVAL OF AGENDA MOTION: By Vice Chairperson O'Keefe and seconded by Commissioner Jones to approve the agenda. Motion passed 7:0 by a roll -call vote. DISCLOSURE OF EX PARTE COMMUNICATIONS: Commissioner Jones stated he had received an email from the applicant under Item #3 to which he did not respond. PC Draft Minutes 02/21/06 Page 1 of 3 PUBLIC COMMENT Jim Cory expressed concern about the work Union Pacific Railroad is doing at Capistrano and Highway 41 for the purpose of allowing a local lumber company to utilize the site for deliveries. Community Development Director Warren Frace stated that staff is working on the issue and has been in contact with Union Pacific and the City Attorney is looking into what options the City has in regard to truck traffic as it leaves or enters the site. Chairperson Beraud closed the Public Comment period. CONSENT CALENDAR 1. APPROVAL OF MINUTES OF THE REGULAR PLANNING COMMISSION MEETING ON FEBRUARY 7, 2006. 2. ACCEPTANCE OF FINAL MAP 2005-0125: 8585 SAN RAFAEL ROAD (TPM -2005-0069) Commissioner Fonzi requested a change to page six of the Minutes of February 7, 2006, fourth paragraph from the bottom, Commissioner Shane changed to Commissioner Slane. MOTION: By Vice Chairperson O'Keefe and seconded by Commissioner Fonzi to approve Item #1 as amended and Item #2. Motion passed 7:0 by a roll -call vote. (Porter abstained on Item # 1) COMMUNITY DEVELOPMENT STAFF REPORTS PUBLIC HEARINGS 3. VARIANCE 2005-0009, CONTINUED FROM MEETING OF 2-7-06 Applicant: Eric Roy, 9186 Palomar Ave., Atascadero, CA 93422 Project Title: Variance 2005-0009 Project 9186 Palomar Ave., Atascadero, CA 93422, APN 029-201-026 Location: Project A variance request to allow a front yard fence to be five (5') to six (6') feet in height. Fencing within the Description: front setback is currently limited to three (3) feet in height. General Plan Designation: SFR -Y Zoning District: RSF-Y Proposed CATEGORICAL EXEMPTION: The project qualifies for a Class 5 Categorically Exemption under the PC Draft Minutes 02/21/06 Page 2 of 3 Environmental provisions of the California Environmental Quality Act, CEQA section 15305. Minor Alterations in Land Determination Use Limitations. Deputy Community Development Director Steve McHarris presented the staff report and answered questions of the Commission emphasizing that findings could not be made for the front yard fence as the subject property location and relationship to the street, and its front windows, are not unique to Atascadero. Commissioner Kelly began discussion regarding the fence being within the City's right- of-way based on a measurement from a registered survey monument within Palomar Avenue directly in front of the subject property. He also noted that the applicant's site plan dimensions were incorrect based on the survey monument. There was Commission discussion regarding the fence being constructed outside of the owner's property and within the City's right-of-way. PUBLIC COMMENT Eric & Katherine Roy, applicants, addressed staff comments with the use of a PowerPoint presentation. Chairperson Beraud closed the Public Comment period. Commissioner Kelly Chairperson Beraud questioned what action the Commission should take if it is determined that the fence is in the City's right-of-way. Public works Director Steve Kahn stated he had looked at the site and until the survey monument's cap is pulled off and the surveyor has determined where the property line is located he would not want to speculate on whether or not the applicant's property is in the right-of-way. Commissioner Fonzi expressed concern that staff accepted the fee from the applicant then encouraged them to proceed with the Variance. Deputy Community Development Director McHarris explained that staff had informed the applicant that this could not be approved as a Variance application and encouraged them not to proceed. He stated staff tries to avoid taking such applications when they are not applicable, but the applicant felt strongly about presenting his issues to the Commission. PUBLIC COMMENT Eric stated that if his fence is in the right-of-way so are his neighbor's fences. He made the following points: • He should file for a Variance; • His street facing yard is designed as a side yard not a front yard; • The slope of the street is unique; PC Draft Minutes 02/21/06 Page 3 of 3 • The French Doors on his home are unique • His home is a non -conforming use; • He has a right to continue his non -conforming use; • The code allows adjustments to fence locations • The code applies to new land uses, not his home; and • The code provides exception standards for fences. Eric Roy stated that code enforcement officer Tom Peterson told him the violation complaint did not come from anyone that lives on his street or within his neighborhood, and he did not insist staff take their money, and that he would not have paid the fee had he been told the Variance application could not be approved. Chairperson Beraud closed the Public Comment period. MOTION: By Vice Chairperson O'Keefe and seconded by Commissioner Kelley to adopt Resolution PC 2006-0013 denying Variance 2005-0009 based on findings. Motion failed 3:3 by a roll -call vote. (Jones abstained due to right-of-way uncertainty, Slane, Porter, Fonzi opposed) Commissioner O'Keefe asked staff if the applicant's statements were applicable or taken out of context. Deputy Community Development Director Steve McHarris responded point by point that the cited code sections did not apply to the variance request. Commissioner O'Keefe asked staff if there were similar violation complaints received on the neighborhood. Deputy Community Development Director Steve McHarris stated that the same violation was being processed for a property two doors down from the applicant. Commissioner Kelly stated that alternatives to a six-foot fence did exist and he does not know how to accept a fence constructed within the City's right-of-way. Chairperson Beraud asked staff if the commission can ignore a fence in the right-of-way or are they obligate to address this. Public Works Director Steve Kahn state that he would not speculate on the fence location until a survey is performed. Commissioner Jones stated for the record that though he had originally supported the continuance and would be likely to support the fence, the issue of the right-of-way troubles him. PC Draft Minutes 02/21/06 Page 4 of 3 Commissioner Fonzi stated she had voted no because as a governing body the Commission's responsibility is not just enforcement, but to also adjudicate and judge issues fairly, and she thinks the applicant acted in good faith. Commissioner Porter stated his agreement with Commission Fonzi and that what is important is that the fence is compatible with the surrounding neighborhood where there are other fences; none of the neighbors filed the complaint; and that the applicant wants the fence that they already built. Vice Chairperson O'Keefe expressed concern that if the Commission grants a Variance on this, why not approve other six foot fences that may come in? She indicated that Variances must not be based on the applicant's personality, and that there must be a reason related to the property to be granted, and that there are a number of simple solutions to solve this problem other than the fence. MOTION: By Commissioner Kelley to accept Variance 2005-0009. Commission Fonzi asks, "Do we have to make Findings?" Commission Kelly states, "The Findings are for denying it. I'll make the motion then we can vote whichever way we want to". Commissioner Fonzi seconded the motion. Motion passed 5:2 by a roll -call vote. (O'Keefe, Beraud opposed) 4. CONDITIONAL USE PERMIT 2006-0176 Owner: Atascadero Mutual Water Company, 5005 El Camino Real, Atascadero, CA 93422 Applicant: Raminha Construction, Inc., 4401 El Camino Real, Atascadero, CA 93422 Project Title: Conditional Use Permit 2006-0176 Project 6805 Sycamore Ave., Atascadero, CA 93422, APN 028-121-001 Location: General Plan Designation: Industrial Zoning District: Industrial Park Project The proposed project consists of utilizing an existing public agency equipment and storage yard for a private Description: construction business use. Yard and building improvements will remain unchanged. Visual screening along Sycamore Avenue is proposed with new drought -tolerant landscape trees, shrubs, and vinyl privacy slats within the existing chain-link fence and entry ate. Proposed As an existing facility with no building construction or significant expansion of use, the project qualifies for Environmental a categorical exemption, category 1. A notice of exemption has been prepared for the project as identified in Determination draft Planning Commission Resolution 2006-0015. Deputy Community Development Director Steve McHarris gave the staff report and answered questions of the Commission. PUBLIC COMMENT PC Draft Minutes 02/21/06 Page 5 of 3 David Raminha, applicant, spoke about his request and answered questions of the Commission. Chairperson Beraud closed the Public Comment period. MOTION: By Commissioner Kelley and seconded by Commissioner Porter to adopt Planning Commission Resolution 2006-0018 approving Conditional Use permit 2006-0176. Motion passed 7:0 by a roll -call vote. 5. CONDITIONAL USE PERMIT 2004-0146 AMENDMENT Owner: Peter Laughlin, Laughlin Development, 479 Pacific Street, Monterey, CA 93940 Applicant: Trimark Pacific Homes, 31173 Tower Rd., Visalia, CA 93292 Project Title: Amendment to Conditional Use Permit 2004-0146 Project 2705 El Camino Real, Atascadero, CA 93422, APN 049-151-008, 009, 010 Location: General Plan Designation: High Density Residential Zoning District: Residential Multi -Family — 16 Project Amendment to Master Plan of Development to change 1 -car garages to 2 -car garages, eliminate retaining Description: walls, and provide streetscape architecture modifications. Proposed Consistent with previously certified Mitigated Negative Declaration. Environmental Determination Associate Planner Kelly Gleason gave the staff report and answered questions of the Commission. PUBLIC COMMENT Rick Lang, applicant's representative, answered questions of the Commission. Chairperson Beraud closed the Public Comment period. MOTION: By Commissioner Fonzi and seconded by Commissioner Porter to adopt Resolution PC 2006-0021 approving Conditional Use Permit 2003-0116 and 2004-0146 (Master Plan of Development for Emerald Ridge Phase I, II and III) Amendment based on finding and subject to Conditions of Approval and Mitigation Monitoring and including an amendment to Condition #9 that the Commission's intent is to incorporate retailing walls into the open space area nearest the tot lot to meet or exceed the tot lot area in the original plan. Motion passed 7:0 by a roll -call vote. PC Draft Minutes 02/21/06 Page 6 of 3 6. CONDITIONAL USE PERMIT 2001-0043 AMENDMENT Owners: Crown Castle, 2000 Corporate Dr., South Pointe, PA 15317 Applicant: Michael Frederick, P O Box 573, Atascadero, CA 93422 Applicant: Bechtel/Cingular Wireless, 4685 MacArthur Ct. #480, Newport Beach, CA 92660 Project Title: Amendment to Conditional Use Permit 2001-0043, Telecommunications Facility Project 2850 El Camino Real, Atascadero, CA 93422, APN 049-201-040 Location: General Plan Designation: General Commercial Zoning District: Commercial Park Project Amendment to a Conditional Use Permit to allow for installation of an additional 6 panel antennas and Description: 12 tower mounted amplifier units on a monopine facility. There will be no net increase in land use area. Proposed Class le Categorical Exemption (existing facilities) of the California Environmental Quality Act. Environmental Determination: Associate Planner Kerry Margason gave the staff report and answered questions of the Commission. It was reported that the applicant has changed the request from six antennas to one. PUBLIC COMMENT Russell Story, applicant's representative, spoke about the amplifiers and answered questions of the Commission. Chairperson Beraud closed the Public Comment period. MOTION: By Vice Chairperson O'Keefe and seconded by Commissioner Fonzi to adopt Planning Commission Resolution 2006-0020 approving Conditional Use Permit Amendment 2001-0043, with the change from six panels to one. Motion passed 7:0 by a roll -call vote. 7. TENTATIVE PARCEL MAP 2005-0075 Owners: Micah & Lisa Mumford, 7405 San Gabriel Rd., & Charles Inman, 7930 Santa Ysabel Ave., Atascadero Applicant: Sholders Land Surveys, 9301 Central Ave., Garden Grove, CA 92844 Project Title: Tentative Parcel Map 2005-0075 Project Location: 9075 San Diego Road, Atascadero, CA 93422, APN 045-441-005 General Plan Designation: RE (Residential Estate) PC Draft Minutes 02/21/06 Page 7 of 3 Associate Planner Kerry Margason gave the staff report and answered questions of the Commission. A correction to Exhibit B and additional language to Condition #42 was distributed to the Commission. (Exhibit A) PUBLIC COMMENT Micah Mumford, applicant, spoke about the project and tree removals, and answered questions of the Commission. William Baring stated he owns four properties along the applicant's eastern border and expressed his concern regarding the loss of trees from this project and how the flag lot will affect the trees on his property. Eric Greening stated his concern with the integrity and application of the tree ordinance and stated there was no evidence to make the findings that must be made for the ordinance. Bob Briggs pointed out that most all flag lots in the surrounding areas have straight access and some distance between the other houses and to configure this project otherwise would affect the value of the property. Chip Tamagni, project arborist, spoke about the options he had considered for the trees on this property and suggested reducing the size of the main flag road to save some of the larger trees on the property. Mr. Tamagni answered questions of the Commission. Paulette Gill stated that this project will abut her property and spoke about the negative impacts to her property by the proposed tree removals and flag road. Charles Inman, applicant, explained why the tree removals were necessary and spoke about the impacts to neighboring properties. William Baring suggested that the flag could be created with an easement accessing the two back properties. He also expressed concern with the view shed changes that will occur with the tree removals. Eric Greening indicated that this is too big of an issue to attempt to resolve it at this time and raised several issues that should be considered before moving forward. PC Draft Minutes 02/21/06 Page 8 of 3 Zoning District: RS (Residential Suburban) Project Minor 3 -lot subdivision on slopes of less than ten percent with a request for native tree removal. Description: Proposed Class 15 Categorical Exemption (minor land division) of the California Environmental Quality Act. Environmental Determination Associate Planner Kerry Margason gave the staff report and answered questions of the Commission. A correction to Exhibit B and additional language to Condition #42 was distributed to the Commission. (Exhibit A) PUBLIC COMMENT Micah Mumford, applicant, spoke about the project and tree removals, and answered questions of the Commission. William Baring stated he owns four properties along the applicant's eastern border and expressed his concern regarding the loss of trees from this project and how the flag lot will affect the trees on his property. Eric Greening stated his concern with the integrity and application of the tree ordinance and stated there was no evidence to make the findings that must be made for the ordinance. Bob Briggs pointed out that most all flag lots in the surrounding areas have straight access and some distance between the other houses and to configure this project otherwise would affect the value of the property. Chip Tamagni, project arborist, spoke about the options he had considered for the trees on this property and suggested reducing the size of the main flag road to save some of the larger trees on the property. Mr. Tamagni answered questions of the Commission. Paulette Gill stated that this project will abut her property and spoke about the negative impacts to her property by the proposed tree removals and flag road. Charles Inman, applicant, explained why the tree removals were necessary and spoke about the impacts to neighboring properties. William Baring suggested that the flag could be created with an easement accessing the two back properties. He also expressed concern with the view shed changes that will occur with the tree removals. Eric Greening indicated that this is too big of an issue to attempt to resolve it at this time and raised several issues that should be considered before moving forward. PC Draft Minutes 02/21/06 Page 8 of 3 Micah Mumford, applicant, stated that there was an arborists map turned in with the report. Chairperson Beraud closed the Public Comment period. Commissioner Kelley suggested more information was needed to make a decision including the arborist's map, alternative designs including making the easement wider and roadway narrower, and meandering the roadway. He recommended bringing this back as quickly as possible and that any proposed driveway design must have prior approval from the Fire Department. Chairperson Beraud adjourned the hearing at 9:31 p.m. Chairperson Beraud called the meeting back to order at 9:36 p.m. Vice Chairperson O'Keefe stated the Commission must look at alternative layouts and designs in relation to the Tree Ordinance, that visual impact must be considered as well as a conceptual layout with clustering. MOTION: By Commissioner Kelley and seconded by Commissioner Jones to continue this item and that the applicant, in conjunction with the arborist and the Planning Department and the Engineering Department, work on an alternative driveway design that will offer lesser impact to trees and the possibility of saving as many trees as we can utilizing widening the easement if needed and narrowing the paved part of the driveway and, upon whichever design they end up with to bring back to the Planning Commission, that it be run by the Fire Department for their approval before it comes back to the Commission, and that clustering will be one of options staff will bring back with a conceptual drawing, and that the trees will be marked including trees on the neighbor's lot that would be impacted. Motion passed 7:0 by a roll -call vote. COMMISSIONER COMMENTS AND REPORTS Commissioner Jones asked that Commission members be made aware of any training opportunities that may come up in 2006, and reminded staff of the Commission discussion about not letting items on the agenda that had incomplete landscape plans or arborists reports. He asked for clarification on ex parte communications and spoke about the increased use of Water Company lands for entrepreneurial uses and whether there should be different criteria applied to them. Commissioner Jones recognized Public Works Director Steve Kahn, Council Member Scalise and Mayor Romero (San Luis Obispo) for their efforts at the SLOCOG meeting on behalf of Atascadero. PC Draft Minutes 02/21/06 Page 9 of 3 Community Development Director Warren Frace explained that contact with an applicant, property owner, or another person with a vested interest in a project should be announced during the Ex Parte Communications period. Commissioner Kelley stated he is uncomfortable when the Water Company puts conditions other than a will -serve letter on projects that come before the Commission. Vice Chairperson O'Keefe questioned the variance approved earlier tonight and was concerned because no findings were made. Director Frace stated staff would review the tape and report back on the status of the approval at the next meeting. Commissioner Kelley asked for an update on the Compassionate Care Center and the proposed ordinance. Director Frace reported that the draft ordinance on medical marijuana dispensaries will be on the next Planning Commission agenda. Chairperson Beraud questioned when the motorcycle ordinance would be reviewed by the City Council. Director Frace stated he would check and report back. DIRECTOR'S REPORT Community Development Director Frace stated that the issue of incomplete applications and tree plans will be looked at to prevent a future reoccurrence and reviewed the agenda for the next Commission meeting. Staff is looking at a possible date for a joint session with the City Council on March 14th to discuss condo conversions and other affordable housing issues. There may also be a workshop with the City Council on March 28th to discuss a general plan amendment development project. ADJOURNMENT Chairperson Beraud adjourned the meeting at 10:00 p.m. to the next regularly scheduled meeting of the Planning Commission March 7, 2006. MEETING RECORDED AND MINUTES PREPARED BY: Grace Pucci, Recording Secretary The following exhibit is available for review in the Community Development Department: Exhibit A — Memorandum to Item #7 PC Draft Minutes 02/21/06 Page 10 of 3 Atascadero Planning Commission Staff Report - City Attorney's Office ITEM NUMBER: 2 DATE: 3-7-06 ZCH 2006-0114: Medicinal Marijuana Ordinance RECOMMENDATION: Staff Recommends Planning Commission: 1. Adopt Resolution PC 2006-0024 recommending that the City Council certify Proposed Mitigated Negative Declaration 2006-0004; and, 2. Adopt Resolution PC 2006-0025 recommending that the City Council introduce an ordinance for first reading by title only, to approve Zone Text Change 2006-0114 establishing medicinal marijuana dispensaries as a conditional use in the Commercial Service zone. REPORT -IN -BRIEF: The proposed Zone Text Change will allow for establishment and operation of medical marijuana dispensaries in the Commercial Service Zone through the Conditional Use Permit process. The proposed Ordinance includes specific findings for approval that are discussed below and analyzed within this report. DISCUSSION: Situation and Facts: 1. Applicant / Representative: City of Atascadero, 6907 EI Camino Real, Atascadero 2. Project Address: Commercial Service Zone - Citywide 3. Environmental Status: Proposed Mitigated Negative Declaration 2006-0004 822219 Background The City Council directed staff to prepare an Ordinance that would authorize medical marijuana dispensaries in certain commercial zones with a Conditional Use Permit. The Commission is to hold a public hearing on the draft Ordinance, receive testimony from parties interested in the Zoning Code Amendment, consider the recommendation of the Planning Director and adopt a recommendation to the City Council. The Commission shall consider whether the Ordinance is consistent with the General Plan, or any applicable Specific Plan, and any conditions necessary to mitigate the secondary impact of dispensaries. ANALYSIS: The Atascadero Zoning Code does not list medical marijuana dispensaries as a use permitted as a matter of right or conditionally permitted in any zone within the City. On or about January 12, 2006 an individual expressed interest in opening a dispensary in Atascadero. The Council held a meeting on January 24, 2006, and determined that it would consider an Ordinance to conditionally permit a dispensary in certain zoning districts in the City. Draft Ordinance The Draft Ordinance permits a medical marijuana dispensary in a Commercial Service (CS) Zone subject to a Conditional Use Permit being granted by the Planning Commission.' Dispensary is defined as a location or facility where medical marijuana is made available to and/or distributed by or to two or more of the following: a primary caregiver, a qualified patient, or a person with an identification card2, in strict compliance with California Health & Safety Code section 11362.5 et seq. The major provisions regarding location of the dispensary are as follows: Any location must be: 1. Restricted to the CS (Commercial Service) Zone; 2. No more than one dispensary in the City; 3. Must be a minimum of 1,000 feet from any school, church or park; 4. Must be a minimum of 250 feet from any residential zone; 5. A highly visible location; 6. Established with the understanding that the Commission could waive any distance requirement if the Commission determines that As with all conditional use permits, it could be appealed to the Council. 2 The state law provides that each County Health Department is to issue an identification card for patients of medical marijuana. The County of San Luis Obispo has not implemented a program as of today's date to issue identification cards. 822219 a physical barrier or similar conditions exists that achieves the same purpose. The major provisions regarding operating requirements: 1. Limited to a maximum of 250 patients per month ;3 2. No applicant, agent or employee, or any person exercising management authority of a dispensary cannot have been convicted of a felony, or certain misdemeanors; 3. No minors on the premises; 4. Hours of operation shall be between 8:00 a.m. to 5 p.m.; 5. May not possess more than 8 ounces of dried cannabis per qualified patient or primary caregiver, and maintain no more than 6 mature or 12 immature cannabis plants per qualified patient or primary caregiver; 6. Cannabis cannot be consumed on the premises (this includes parking areas, accessory structures or other surroundings within 500 feet); 7. Cannabis cannot be cultivated on the premises; 8. Must have a security plans approved by the Police Chief; 9. Signage must be approved; 10. No increase in size (floor area or number of patients) without an amended or new permit. There are 20 findings that must be made for the approval of the Conditional Use Permit. These are spelled out in Section 5-12.111 as proposed, but the most significant ones are: 1. The permit is consistent with the intent of Proposition 215; 2. The location is not identified as having significant crime issues; 3. No applicant or employee is under 18 years of age; 4. The dispensary will not adversely affect the health, peace or safety of persons living or working in the surrounding area, overly burden a neighborhood with special needs or high impacts uses, or contribute to a public nuisance; 5. The dispensary complies with the location standards. Included in the remaining portion of this Staff Report are excerpts from the Staff Report that this office provided to the City Council on January 24, 2006. 3 This is a maximum number, and the Commission could reduce the number in any permit. This could be done to make the necessary findings required including the adverse impacts on the neighborhood. 822219 m 7 ,1r'_ �7�5r . lJr�s^ * � r ;�#► gar I ,�► 1 ,1r'_ �7�5r . lJr�s^ * � r ;�#► gar I ,�► 1 issuance of identification cards for qualified patients. Although mandated to establish the identification program, as of the date of this memorandum, the Department has not done so. S.B. 420 also requires that "every county health department, or the county's designee" provide applications for identification cards, process completed applications, maintain records and utilize protocols adopted by the Department of Health Services." As of this date, San Luis Obispo County has not issued identification cards in compliance with S.B. 420. Neither the original 1996 CUA, nor the additions contained in S.B. 420 speak to the regulation of medical marijuana dispensaries. In contrast to California's permissive law, the federal law as codified in the Controlled Substances Act (hereinafter "CSA") prohibits and makes it unlawful for any person to knowingly or intentionally manufacture, distribute, dispense or possess with the intent to manufacture, distribute, or dispense marijuana. The CSA contains no exceptions for the manufacture, distribution, or dispensing of marijuana for medical purposes, and the United States Supreme Court has determined that no such exception is implied in the CSA. Thus, under federal law the distribution of marijuana even for medical purposes and in accordance with the CUA could still lead to criminal prosecution. In late 2003, the United States Court of Appeals for the Ninth Circuit decided the case of Raich v. Ashcroft (2003) 352 F.3d 1222. Therein the Court of Appeals ordered the lower court to enjoin the Federal Drug Enforcement Agency from raiding and destroying the medical marijuana of two ill women who possessed the marijuana in accordance with California's CUA. The Court of Appeals based its decision in part on its finding that the marijuana at issue was grown and consumed in California and never entered the stream of interstate commerce. Because the marijuana did not enter the stream of interstate commerce, the activity in question was purely intrastate, and was outside of the federal government's purview. It should be noted that neither of the plaintiffs in this case received their marijuana from a medical marijuana dispensary. Raich v. Ashcroft was appealed to the United States Supreme Court and reversed the Ninth Circuit opinion. The Supreme Court decided that the Controlled Substances Act classified marijuana as a Schedule I drug, making it illegal to manufacture, distribute, or possess marijuana, except when used as part of an FDA -approved research study. The Supreme Court found Congress has the power to regulate purely local activities that are part of an economic "class of activities" that substantially affect commerce. Congress, in enacting the CSA, reasonably concluded that leaving home -consumed marijuana outside federal control would affect interstate price and market conditions. For instance, the high demand for marijuana will likely draw marijuana grown for home consumption (even if grown for approved medicinal purposes) into the interstate market, thus, frustrating the federal interest in eliminating interstate commercial transaction. Consequently, in enacting CSA, Congress acted within its authority to "make all laws which shall be necessary and proper" to "regulate Commerce among the several states. (U.S. Constitution Article I, Section 8) Application of Compassionate Use Act to Dispensaries S.B. 420 does not expressly authorize collective or cooperative distribution of medical marijuana, but merely provide that the collective cultivation of medical marijuana by 822219 groups of qualified patients, cardholders and primary caregivers shall not, in itself, subject them to prosecution for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for storage, distribution of a controlled substance for sale and shall not cause a property used for such authorized collective cultivation to be declared a nuisance solely by virtue of that use. However, other provisions of S.B. 420 expressly establish that nothing in the section shall " ... authorize any individual or group to cultivate or distribute marijuana for profit." As noted by the Federal District Court for the Northern District of California in U.S. v. Landa (2003), 281 F.Supp.2d 1139. Respondents, operating a commercial enterprise selling marijuana to any qualified public purchaser, do not qualify as "'primary caregiver[s]' " of each such purchaser under section 11362.5(e) by simply obtaining from the purchaser a designation as such prior to and as a condition of a marijuana sale to that person. One maintaining a source of marijuana supply, from which all members of the public qualified as permitted medicinal users may or may not discretionarily elect to make purchases, does not thereby become the party "who has consistently assumed responsibility for the housing, health, or safety' of that purchaser as section 11362.5(e) requires. (Italics added.) Respondents are, consequently, not immunized against the enforcement of section 11570 against them because they allegedly store, possess, and sell marijuana in the capacity of consistent primary caretakers of the health and safety of their numerous purchasers. Despite popular misconception, Proposition 215 did not legalize large-scale marijuana processing and distribution --even for eventual medical marijuana uses. Rather, its state immunity from state prosecution has been limited to possession and use by qualified patients and their qualified primary caregivers. (A separate provision exonerates physicians who recommend marijuana, but that provision could have no applicability here.) While S.B. 420, the Medical Marijuana Program Act, expanded exemptions to prosecution available to individual medical marijuana patients, cardholders and caregivers under the CUA and extended protections to cultivation cooperatives consisting of authorized individuals, the law does not establish a right to obtain marijuana from a particular source, nor does it authorize for-profit cultivation or distribution of medical marijuana, which activity is an obvious concern arising from the establishment of dispensaries. 822219 Application of Gonzales v. Raich to the City of Atascadero Relevant Constitutional and Statutory Provisions The Commerce Clause of the U.S. Constitution provides: "The Congress shall have Power to ... regulate Commerce with foreign Nations and among the several States ... " The decision in the Raich case simply continued a long line of high court authority affirming the expansive reach of the Congress' authority to legislate pursuant to its commerce powers. The Supremacy Clause of the U.S. Constitution provides, "[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Pursuant to the Supremacy Clause, federal law shall take precedence over any contrary state or local law. Accordingly, any state or local law in conflict with federal law is invalid. However, whenever possible, the courts will construe laws in a manner that does not create a conflict with the federal constitution. California Government Code section 37100 similarly provides "the legislative body may pass ordinances not in conflict with the Constitution and laws of the State or the United States." This provision grants broad authority to local legislative bodies to pass laws for the protection of the health, safety and welfare of their citizenries, but underscores the premise that local laws that conflict with state or federal laws are invalid. Although the Raich case is important to the discussion of the City's options with respect to the local regulation of medical marijuana, it is not the first decision by the U.S. Supreme Court or California courts addressing the interplay between California law and federal law on this issue. Both the Supreme Court and the Federal District Court for the Northern District of California have previously issued opinions supporting the proposition that the possession, cultivation and distribution of medicinal marijuana, as contemplated under Proposition 215 and S.B. 420, violate the CSA and are subject to federal prosecution. The Raich case simply affirmed Congress's fundamental authority under the Commerce Clause to enact the CSA. In short, it has now been affirmed by the federal courts that the federal government has the constitutional authority to regulate medical marijuana and that the possession, cultivation and distribution of medical marijuana is a violation of existing, validly enacted federal law. Public Safety/Police Concerns The Police Department has contacted other police departments in the state where medical marijuana dispensaries are operating or have operated. The concerns raised were that the dispensaries do not abide by the rules. The dispensaries would stay open longer than allowed hours, patrons would loiter in the parking lot and surrounding areas, "hand to hand" illegal sales in the parking lots and surrounding areas occurred and the facilities had larger amounts of "product" than allowed. There were also reported an increase in crime related to home invasions. Commercial establishments around the 822219 CCCC operation that opened on EI Camino Real in January raised similar concerns. There were serious concerns about the sales and loitering in the parking lot and safety of patrons in the shopping center. ALTERNATIVES: 1. The Commission may recommend revisions to the ordinance. 2. The Commission may recommend that the Council not approve any ordinance that would permit medical marijuana dispensaries within any zoning district of the City. PREPARED BY: ATTACHMENTS: Attachment 1 Attachment 2 Attachment 3 822219 Patrick Enright, City Attorney Proposed Mitigated Negative Declaration and Initial Study Draft Resolution 2006-0024 Draft Resolution 2006-0025 ATTACHMENT 1: Proposed Mitigated Negative Declaration and Initial Study See Following 822219 ATTACHMENT 2: Draft Resolution PC 2006-0024 Approval of Draft Mitigated Negative Declaration DRAFT RESOLUTION PC 2006-0024 RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ATASCADERO, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL CERTIFY PROPOSED MITIGATED NEGATIVE DECLARATION 2006-0004 PREPARED FOR ZONE CHANGE 2006-0114 (City of Atascadero/Medicinal Marijuana Ordinance) WHEREAS, the City of Atascadero has initiated a process to amend the Municipal Code to conditionally allow medical marijuana dispensaries within certain commercial zones in the City of Atascadero; and, WHEREAS, an Initial Study and Proposed Mitigated Negative Declaration 2006-0004 were 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 of the City of Atascadero held a public hearing on March 7, 2006 following the close of the review period to consider the Initial Study and Proposed Mitigated Negative Declaration; and, WHEREAS, the Planning Commission has determined that the proposed Ordinance will have no significant impacts with findings and conditions incorporated into the approval process; and, NOW THEREFORE, the Planning Commission of the City of Atascadero, hereby resolves to recommend that the City Council certify Proposed Mitigated Negative Declaration 2006-0114 based on the following Findings, and as shown in Exhibit A: 1. The Proposed Mitigated Negative Declaration has been completed in compliance with CEQA; and, 2. The Proposed Mitigated Negative Declaration was presented to the Planning Commission, and the information contained therein was considered by the Planning Commission, prior to recommending action on the project for which it was prepared; and, 3. The proposed Zone Text Amendment does not have the potential to degrade the environment when mitigation measures are incorporated into the project; and, 4. The proposed Zone Text Amendment will not achieve short-term to the disadvantage of long-term environmental goals; and, 822219 5. The proposed Zone Text Amendment does not have impacts which are individually limited, but cumulatively considerable; and, 6. The proposed Zone Text Amendment will not cause substantial adverse effects on human beings either directly or indirectly; and, 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 Ellen Beraud Planning Commission Chairperson Attest: Warren M. Frace Planning Commission Secretary 822219 Exhibit A Proposed Mitigated Negative Declaration 2006-0004 See Following 822219 ATTACHMENT 3: Draft Resolution PC 2006-0025 DRAFT RESOLUTION PC 2006-0025 RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ATASCADERO, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL AMEND THE ATASCADERO MUNICIPAL CODE BY ADDING CHAPTER 12 of TITLE 5, AND AMENDING CHAPTER 3 OF TITLE 9 BY APPROVING ZONE CHANGE 2006-0114 TO ESTABLISH MEDICAL MARIJUANA DISPENSARIES AS A CONDITIONALLY ALLOWED USE IN THE COMMERCIAL SERVICE ZONE (City of Atascadero) WHEREAS, the City of Atascadero has initiated a process to amend the Municipal Code to conditionally allow medical marijuana dispensaries within certain commercial zones in the City of Atascadero; and, WHEREAS, the voters of the State of California approved proposition 215 (codified as Health and Safety Code Section 11362.5 et seq. and entitled "The Compassionate Use Act of 1996"); and, WHEREAS, the intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to be able to obtain and use it without fear of criminal prosecution under limited, specified circumstances; and, WHEREAS, the State enacted SB 420 in 2004 to clarify the scope of the Compassionate Use Act of 1996 and to allow cities and other governing bodies to adopt and enforce rules and regulations consistent with SB 420; and, WHEREAS, to protect the public health, safety, and welfare, it is the desire of the City Council to modify the municipal code consistent with SB 420, regarding the location and operation of Medical Marijuana Dispensaries; and, WHEREAS, it is the City Council's intention that nothing in this ordinance shall be deemed to conflict with federal law as contained in the Controlled Substances Act, 21 U.S.C. Section 841, not to otherwise permit any activity that is prohibited under that Act; and, WHEREAS, it is the City Council's intention that nothing in this Ordinance shall be construed to (1) allow persons to engage in conduct that endangers others or causes a public nuisance, (2) allow the use of marijuana for non-medical purposes, or (3) allow any activity 822219 relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal; and, WHEREAS, pursuant to California Health and Safety Code Section 11362.71 et seq., the State Department of Health shall be responsible for establishing and maintaining a voluntary identification card program; and, WHEREAS, California Health and Safety Code Section 11362.71(b) requires every county health department, or its designee, to implement a procedure to accept and process applications from those seeking to join the identification program in the matter set forth in Section 11362.71 et seq; and, WHEREAS, an Initial Study and Draft Mitigated Negative Declaration 2006-0004 were 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 the Zoning Code Text to protect the health, safety, and welfare of its citizens; 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 Zone 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 zoning text amendments; and, WHEREAS, the Planning Commission of the City of Atascadero, at a Public Hearing held on March 7, 2006 studied and considered Zone Change 2006-0114, after first studying and considering the Draft Mitigated Negative Declaration prepared for the project, and, NOW THEREFORE, the Planning Commission of the City of Atascadero takes the following actions: SECTION 1. Recommendation of Approval. The Planning Commission of the City of Atascadero, in a regular session assembled on March 7, 2006 resolved to recommend that the City Council introduce for first reading by title only, an Ordinance that would amend the City Zoning code text with the following: 5-12.101: Purpose and Intent. It is the purpose and intent of this ordinance to regulate Medical Marijuana Dispensaries in order to promote the health, safety, morals, and general welfare of the residents and businesses within the City. It is neither the intent nor effect of this ordinance to condone or legitimize the use of marijuana. 822219 5-12.102: Definitions. For the purpose of this chapter, the words and phrases shall have the same meanings respectively ascribed to them by this section: A. "Applicant" means a person who is required to file an application for a permit under this chapter, including an individual owner, managing partner, officer of a corporation, or any other operator, manager, employee, or agent of a Medical Marijuana Dispensary. B. "Church" means a structure or leased portion of a structure which is used primarily for religious worship and related religious activities. C. "City" means the City of Atascadero. D. "City Manager" means the City Manager of the City of Atascadero or the authorized representative there of. E. "Director of Community Development" means the Director of Community Development of the City of Atascadero or the authorized representative thereof. F. "Drug paraphernalia" shall have the same definition as California Health and Safety Code Section 11362.5, and as may be amended. G. "Fire Chief' means Fire Chief of the City of Atascadero or the authorized representative thereof. H. "Identification card" shall have the same definition as California Health and Safety Code Section 11362.5 et seq., and as may be amended. I. "Medical Marijuana Dispensary" or "Dispensary" means any facility or location where medical marijuana is made available to and/or distributed by or to two or more of the following: a primary caregiver, a qualified patient, or a person with an identification card, in strict accordance with California Health and Safety Code Section 11362.5 et seq. A "medical marijuana dispensary" shall not include the following uses, as long as the location of such uses 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 et seq. J. "Permittee" means the person to whom a Medical Marijuana Dispensary permit is issued. K. "Person" means any individual, partnership, co -partnership, firm, association, joint stock company, corporation, limited liability company or combination of the above in whatever form or character. L. "Person with an identification card" shall have the same definition as California Health and Safety Code Section 11362.5 et seq., and as may be amended. M. "Police Chief' means the Police Chief of the City of Atascadero or the authorized representatives thereof. M. "Primary caregiver" shall have the same definition as California Health and Safety Code Section 11362.5 et seq., and as may be amended. O. "Qualified patient" shall have the same definition as California Health and Safety Code Section 11362.5 et seq., and as may be amended. 822219 P. "School" means an institution of learning for minors, whether public or private, offering a regular course of instruction required by the California Education Code, or any child or day care facility. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education. 5-12.103: Permit required. It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the City of Atascadero the operation of a Medical Marijuana Dispensary unless the person first obtains and continues to maintain in full force and effect conditional use permit for a Medical Marijuana Dispensary from the City of Atascadero as herein required. The Planning Commission shall consider all conditional use permits for Medical Marijuana Dispensaries. The Planning Commission shall consider and review all applications for a conditional use permit for a Medical Marijuana Dispensary and approve in accordance with this chapter or deny. All appeals shall be in accordance with Section 9-1.111 of the Atascadero Municipal Code. 5-12.104 General Tax Liability. An operator of a dispensary shall also be required to apply for and obtain a general City tax certificate or exemption as a prerequisite to obtaining a permit pursuant to the terms hereof, as required by the State Board of Equalization. 5-12.105 Imposition of Fees. Every application for a permit or renewal shall be accompanied by a nonrefundable fee, as established by resolution of the City Council from time to time. This application or renewal fee shall not include fingerprinting, photographing, and background check costs and shall be in addition to any other business license fee or permit fee imposed by this code or other governmental agencies. Fingerprinting, photographing, and background check fees will be as established by resolution adopted by the City Council from time to time. 5-12.106 Limitations on Number and Size of Dispensaries. This Chapter authorizes one medical marijuana dispensary within the City limits at any time, and shall serve up to a maximum of 250 patients per month, in compliance with the provisions of this chapter. The City shall not grant or cause to be granted more than one (1) permit for a dispensary. 5-12.107 Limitation on Location of Dispensary. (A) Except as specified in (B) below, no Medical Marijuana Dispensary shall be established or located in any zone in the City. (B) A Medical Marijuana Dispensary is restricted to the CS (Commercial Services) zone, provided the subject site is one thousand (1,000) feet from the property line of a school, church, park and two -hundred and fifty (250) feet from the property line of a residential zone. 822219 (C) A dispensary shall be in a highly visible location that provides good views of the dispensary entrance, windows and premises from the public street. (D) The distance between a dispensary and above listed uses shall be made in a straight line from the boundary line of the property on which the dispensary is located to the boundary of the property on which the building or structure, or portion of the building or structure, in which the above listed use occurs or is located. (E) A waiver of the provisions in Subsection B above may be granted if the applicant demonstrates on plans and materials presented for review and the Planning Commission determines that a physical barrier or similar condition exists which achieves the same purpose and intent as the distance separation requirements established herein. 5.12.108 Operating Requirements. Dispensary operations shall be established and managed only in compliance with the following standards: (A) Criminal History. Any applicant, his or her agent or employees, or any person exercising managerial authority of a dispensary on behalf of the applicant shall not have been convicted of a felony, or of a misdemeanor involving moral turpitude, or engaged in misconduct related to the qualifications, functions or duties of a permittee. A conviction within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere. (B) Minors. (1) It shall be unlawful for any permittee, operator, or other person in charge of any dispensary to employ any person who is not at least eighteen (18) years of age. (2) Persons under the age of eighteen (18) shall not be allowed on the premises of a dispensary unless they are a qualified patient or a primary caregiver and they are in the presence of their parent or guardian. (3) The entrance to a dispensary shall be clearly and legibly posted with a notice indicating that person under the age of eighteen (18) are precluded from entering the premises unless they are a qualified patient or a primary caregiver and they are in the presence of their parent or guardian. (C) Operating. A dispensary shall only be operated during the following days and hours: • Monday through Sunday — 8 a.m. to 5 p.m. (D) Dispensary Size and Access. (1) The dispensary size shall be restricted to serve a maximum of 250 patients per month. Dispensary size shall be limited, as deemed appropriate and necessary, to best serve patient needs within the intent of this chapter and reduce potential adverse impacts that might otherwise occur on surrounding neighborhoods, businesses and demands on City services. (2) A dispensary shall not be increased in size (i.e., floor area or number of patients) without a prior approval amending the existing dispensary permit. (3) The entrance into the dispensary building shall be locked at all times with entry strictly controlled; e.g., a "buzz -in" electronic/mechanical entry system is highly encouraged. A viewer shall be installed in the door that allows maximum angle of view of the exterior entrance. (4) Qualified security personnel shall be employed during all hours of operation to monitor site activity, control loitering and site access. 822219 (5) Only dispensary staff, primary caregivers, qualified patients and persons with bona-fide purposes for visiting the site shall be permitted at a dispensary. (6) Potential patients or caregivers shall not visit a dispensary without first having obtained a valid written recommendation from their physician recommending use of Medical Cannabis. (7) Only a primary caregiver and qualified patient shall be permitted in the designated dispensing area with dispensary personnel. All other authorized visitors shall remain in the designated waiting area in the front entrance/lobby. (8) Restrooms shall remain locked and under the control of management. (E) Dispensary Supply. A dispensary may possess no more than eight (8) ounces of dried cannabis per qualified patient or primary caregiver, and maintain no more than six (6) mature or twelve (12) immature cannabis plants per qualified patient or primary caregiver. However, if a qualified patient or primary caregiver has a physician's recommendation that this quantity does not meet the qualified patient's medical needs, the dispensary may possess an amount of cannabis consistent with the patient's needs. (F) Dispensing Operations. (1) A dispensary shall dispense medical cannabis to meet monthly medication needs of qualified patients, similar to typical pharmacy operations. The dispensary shall strongly discourage and avoid daily or weekly visits by patients as a routine practice. (2) A dispensary shall only dispense to qualified patients or caregivers with a currently valid physicians approval or recommendation in compliance with the criteria in California Health and Safety Code sections 11362.5. et seq. (3) Prior to dispensing Medical Cannabis, the dispensary shall obtain verbal and signed verification from the recommending Physician that the individual requesting Medical Cannabis is a qualified patient. (4) A dispensary shall not have a physician on-site to evaluate patients and provide a recommendation for medical cannabis. (5) Patient records shall be maintained on-site and verified as needed, and at least every 6 months with the qualifying patients physician or Doctor of Osteopathy. (6) Information on prior years operations shall be provided annually, as required in this chapter. The operator shall adjust the operations as necessary to address issues. (G) Consumption Restrictions. (1) Cannabis shall not be consumed on the premises of the dispensary. The term "premises" includes the actual building, as well as any accessory structures, parking areas, or other surroundings within 500 feet of the dispensary's entrance. (2) Dispensary operations shall not result in illegal redistribution of medical cannabis obtained from the dispensary, or use in any manner that violates local, state or City Codes. (3) Patients shall not openly medicate in public places. (H) Retail Sales and Cultivation Prohibited. (1) No cannabis shall be cultivated on the premises of the dispensary. (2) No dispensary shall conduct or engage in the commercial sale of any product, good or service. The term "commercial sale" does not include the provision of medical cannabis on terms and conditions consistent with this chapter and applicable law. (3) No dispensary shall sell or display any drug paraphernalia or any implement that may be used to administer medical cannabis. (4) A dispensary shall not cultivate, distribute or sell medical cannabis for a profit. 822219 (5) A dispensary shall not pay any supplier(s) of medical cannabis more than the costs incurred for cultivation and preparation. (6) A dispensary shall meet all the operating criteria for the dispensing of medical cannabis as is required pursuant to California Health and Safety Code sections 11362.5. et seq. (I) OperatingP. (1) Floor plan. A dispensary shall have a lobby "waiting area" at the entrance to receive clients, and a separate and secure designated area for Dispensing Medical Cannabis to qualified patients or designated caregivers. The primary entrance shall be located and maintained clear of barriers, landscaping and similar obstructions so that it is clearly visible from public streets, sidewalks or site driveways. (2) Storage. A dispensary shall have a suitable locked safe on premises, identified as a part of the security plan, for after-hours storage of Medical Cannabis. (3) Minimum staffing levels. The premises shall be staffed with at least one person during hours of operation who shall not be responsible for dispensing medical cannabis. (4) Odors control. A dispensary shall have an air treatment system that ensures off- site odors shall not result. (5) Security plans. A dispensary shall provide adequate security on the premises, as approved by the Police Chief, including lighting and alarms, to insure the safety of persons and to protect the premises from theft. (6) Security cameras. Security surveillance cameras shall be installed to monitor the main entrance and exterior of the premises to discourage loitering, crime, illegal or nuisance activities. (7) Security video retention. Security video shall be maintained for 72 hours. (8) Alarm system. A professionally monitored robbery alarm system shall be installed and maintained in good working condition. An alarm permit shall be obtained prior to installing an alarm system. (9) Emergency contact. A dispensary shall provide the Police Chief with the name, phone number and facsimile number of an on-site community relations staff person to whom one can provide notice if there are operating problems associated with the dispensary. The dispensary shall make every good faith effort to encourage neighborhood residents to call this person to try to solve operating problems, if any, before any calls or complaints are made to the City. (J) Signage and Notices. (1) The building entrance to a dispensary shall be clearly and legibly posted with a notice indicating that smoking, ingesting or consuming cannabis on the premises or in the vicinity of the dispensary is prohibited. (2) Signs on the premises shall not obstruct the entrance or windows. (3) Address identification shall comply with City Code standards. (4) Business identification signage shall be limited to that needed for identification only, consisting of a single window sign or wall sign consistent with the sign Ordinance. Signs shall comply with all ordinances and not contain any logos or information that identifies, advertises or lists the services offered. (K) Employee Records. Each owner or operator of a dispensary shall maintain a current register of the names of all employees currently employed by the dispensary, and shall disclose such registration for inspection by any City officer or official for purposes of determining compliance with the requirements of this section. 822219 (L) Patient Records. A dispensary shall maintain records of all patients and primary caregivers using only the identification card number issued by the county, or its agent, pursuant to California Health and Safety Code Section 11362.71 et seq., as a protection of the confidentiality of the cardholders, or a copy of the written recommendation from a physician or Doctor of Osteopathy stating the need for medical cannabis. (M) Staff Training. Dispensary staff shall receive appropriate training for their intended duties to ensure understanding of rules and procedures regarding dispensing in compliance with state and local law, and properly trained or professionally-hired security personnel. (N) Site Management. (1) The operator of the establishment shall take all reasonable steps to discourage and correct objectionable conditions that constitute a nuisance in parking areas, sidewalks, alleys and areas surrounding the premises and adjacent properties during business hours if directly related to the patrons of the subject dispensary. (a) "Reasonable steps" shall include calling the police in a timely manner; and requesting those engaging in objectionable activities to cease those activities, unless personal safety would be threatened in making the request. (b) "Nuisance" includes but is not limited to disturbances of peace, open public consumption of cannabis or alcohol, excessive pedestrian or vehicular traffic, illegal drug activity, harassment of passerby, excessive littering, excessive loitering, illegal parking, and excessive loud noises, especially late at night or early in the morning hours, lewd conduct or police detentions and arrests. (2) The operator shall take all reasonable steps to reduce loitering in public areas, sidewalks, alleys and areas surrounding the premises and adjacent properties during business hours. (3) The operator shall ensure that the hours of operation shall not be a detriment to the surrounding area. (4) The operator shall provide patients with a list of the rules and regulations governing medical cannabis use and consumption within the City and recommendations on sensible cannabis etiquette. (0) Trash, Litter, Graffiti. (1) The operator shall clear the sidewalks adjoining the premises plus10 feet beyond property lines along the street as well as any parking lots under the control of the operator as needed to control litter, debris and trash. (2) The operator shall remove all graffiti from the premises and parking lots under the control of the operator within 72 hours of its application. (P) Compliance with Other Requirements. The operator shall comply with all provisions of all local, state or federal laws, regulations or orders, as well as any condition imposed on any permits issued pursuant to applicable laws, regulations or orders. (Q) Confidentiality. The information provided for purposes of this section shall be maintained by the City Manager as confidential information, and shall not be disclosed as public records unless pursuant to subpoena issued by a court of competent jurisdiction. (R) Display of Permit. Every dispensary shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such dispensary in a conspicuous place so that the same may be readily seen by all persons entering the dispensary. (S) Reporting and Payment of Fees. Each permittee shall file a sworn statement with the City Manager indicating the number of patients served by the dispensary within the previous calendar year, and pay all annual permit fees. 822219 5-12.109 Application Preparation and Filing. (A) Application Filing. A complete application submittal packet shall be submitted including all necessary fees and all other information and materials required by the City and this chapter. All applications for permits shall be filed with the Community Development Department, using forms provided by the City. It is the responsibility of the applicant to provide information required for approval of the permit. The application shall be made under penalty of perjury. (B) Eli _ ig bility for Filing. Applications may only be filed by the owner of the subject property, or person with a lease signed by the owner or duly authorized agent allowing them to occupy the property for the intended use. (C) Filing Date. The filing date of any application shall be the date when the City receives the last submission of information or materials required in compliance with the submittal requirements specified herein. (D) Effect of Incomplete Filing. Upon notification that an application submittal is incomplete, the applicant shall be granted an extension of time to submit all materials required to complete the application within ninety (90) days. If the application remains incomplete in excess of ninety (90) days the application shall be deemed withdrawn and new application submittal shall be required in order to proceed with the subject request. The time period for granting or denying a permit shall be stayed during the period in which the applicant is granted an extension of time. (E) Effect of Other Permits or Licenses. The fact that an applicant possesses other types of state or City permits or licenses does not exempt the applicant from the requirement of obtaining a dispensary permit. (F) Submittal Requirements. Any application for a permit shall include the following information: (1) Applicant(s) name. The full name (including any current or prior aliases, or other legal names the applicant is or has been known by, including maiden names), present address, and telephone number of the applicant; (2) Applicant(s) mailing address. The address to which notice of action on the application is to be mailed; (3) Previous addresses. Previous addresses for the past five years immediately prior to the present address of the applicant; (4) Verification of age. Written proof that the applicant is over the age of eighteen (18) years of age; (5) Physical description. Applicant's height, weight, color of eyes and hair; (6) Photographs. Passport quality photographs for identification purposes; (7) Employment history. All business, occupation, or employment of the applicant for the five years immediately preceding the date of the application; (8) Tax history. The dispensary business tax history of the applicant, including whether such person, in previously operating in this or another city, county or state under license has had a business license revoked or suspended, the reason therefore, and the business or activity or occupation subsequent to such action of suspension or revocation; (9) Management information. The name or names and addresses of the person or persons having the management or supervision of applicant's business; 822219 (10) Criminal background. A background investigation verifying whether the person or person having the management or supervision of applicant's business has been convicted of a crime(s), the nature of such offense(s), and the sentence(s) received therefore; (11) Employee information. Number of employees, volunteers, and other persons who will work at the dispensary; (12) Statement of dispensary need. A statement and/or information to establish the need for the dispensary to serve qualified patients in the area; (13) Plan of Operations. A plan of operations describing how the dispensary will operate consistent with the intent of state law and the provisions of this ordinance, including but not limited to: (a) Ensuring cannabis is not purchased or sold by the dispensary in a manner that would generate a profit. (b) Controls that will assure medical cannabis will be dispensed to qualifying patients or caregivers only. (c) Controls that will ensure limitations on numbers of patients are adhered to. (d) Controls that will ensure access to dispensary premises is adequately monitored and restricted to pre -approved qualified patients and caregivers. (e) Method for ensuring that a qualified patient's physician is not recommending cannabis for less than medically appropriate reasons. (14) Written Project Description. A written description summarizing the proposed dispensary use size, number of patients, characteristics and intent. (15) Written response to dispensary standards. The applicant shall provide a comprehensive written response identifying how the dispensary plan complies with the each of the standards for review in this chapter, specifically the Limitation on Number and Size, Limitation on Location, and Operating Requirements sections. (16) Security plan. A detailed security plan outlining the proposed security arrangements for insuring the safety of persons and to protect the premises from theft. The plan shall include installation of security cameras, a robbery alarm system monitored by a licensed operator, and a security assessment of the site conducted by a qualified professional; (17) Floor plan. A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the dispensary. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches; (18) Site plan. A sketch or diagram showing exterior configuration of the premises, and contiguous properties including the outline of all structures, parking and landscape areas, and property boundaries. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions to an accuracy of plus or minus six (6) inches; (19) Lighting plan. A lighting plan showing existing and proposed exterior premise and interior lighting levels that would be the minimum necessary to provide adequate security lighting for the use and comply with all City standards regarding lighting design and installation; (20) City authorization. Written authorization for the City, its agents and employees to seek verification of the information contained within the application; (2 1) Statement of owners consent. A statement in writing by the applicant that he or she certifies under penalty of perjury that the applicant has the consent of the Property Owner and Landlord to operate a dispensary at the location. 822219 (22) Applicants certification. A statement in writing by the applicant that he or she certifies under penalty of perjury that all the information contained in the application is true and correct. (23) Other information. Such other identification and information as deemed necessary by the Director of Community Development and/or Police Chief to demonstrate compliance with this chapter and City Codes, including operating requirements established herein. 5-12.110 Investigation and Action on Application. After the making and filing of a complete application for the dispensary permit and the payment of the fees, the Police Chief shall conduct a background check of the applicant and all employees and conduct an investigation of the application, and take action as follows: (A) The application shall be referred to any other City departments as necessary to complete the investigation into the application. At a minimum this should include the City Manager, Fire Chief, and the Director of Community Development. (B) Within 45 days after completion of his or her investigation, the Police Chief shall either deny the application in accordance with the provisions of this chapter, deem the application incomplete, or refer the application for a permit to the Planning Commission. (C) An applicant aggrieved by the Police Chief's decision to deny a permit may appeal such decision to the Planning Commission by filing a written notice stating the grounds on which the appeal is based and paying applicable appeal fee with the City Clerk within ten (10) working days of the Police Chief's written notice of decision. If an appeal is not taken within such time, the Police Chief's decision shall be final. 5-12.111 Findings for Approval of Conditional Use Permit. The Planning Commission shall make all of the following findings in determining whether to grant a dispensary permit; failure to make all of the required findings shall result in the denial of the permit: (A) That the dispensary permit is consistent with the intent of Proposition 215 and related state law, the provisions of this chapter and the City Code, including the Application submittal and Operating requirements herein. (B) That the dispensary location is not identified as having significant crime issues (e.g., based upon crime reporting district/statistics as maintained by the police department). (C) That there have not been significant numbers of calls for police service, crimes or arrests in the area. (D) That an applicant or employee is not under eighteen (18) years of age. (E) That all required application materials have been provided in a manner that shows it would comply with the Operating Requirements and standards specified in this chapter. (F) That an appropriate limit on size of the dispensary has been established and the requested permit would not exceed limitations on number of patients and/or permits allowed by this chapter. 822219 (G) That issuance of a dispensary permit for the size requested is justified to meet needs of residents. (H) That issuance of the dispensary permit would serve needs of residents at this location. (I) That the location in not is prohibited by the provisions of this chapter or any local or state law, statute, rule or regulation and no significant nuisance issues or problems are anticipated or resulted. (J) That the site plan, floor plan, and security plan have incorporated features necessary to assist in reducing potential crime -related problems and as specified in the Operating Requirements section. These features may include, but are not limited to, security on-site; procedure for allowing entry; openness to surveillance and control of the premises; the perimeter, and surrounding properties; reduction of opportunities for congregating and obstructing public ways and neighboring property; illumination of exterior areas; and limiting furnishings and features that encourage loitering and nuisance behavior. (K) That no dispensary use, owner, permittee, agent, or employee has violated any provision of this chapter including grounds for suspension, modification or revocation of a permit. (L) That all reasonable measures have been incorporated into the plan and/or consistently taken to successfully control the establishment's patrons' conduct resulting in disturbances, vandalism, crowd control inside or outside the premises, traffic control problems, ingesting cannabis in public, or creation of a public or private nuisance, or interference of the operation of another business. (M) That the dispensary would not adversely affect the health, peace or safety of persons living or working in the surrounding area, overly burden a specific neighborhood with special needs or high impact uses, or contribute to a public nuisance; or that the dispensary has resulted in repeated nuisance activities including disturbances of the peace, illegal drug activity, ingesting cannabis in public, harassment of passerby, excessive littering, excessive loitering, illegal parking, excessive loud noises, especially late at night or early in the morning hours, lewd conduct, or police detentions or arrests. (N) That any provision of the City Code or condition imposed by a City issued permit, or any provision of any other local, State or Federal law, regulation, or order, or any condition imposed by permits issues in compliance with those laws has not been violated. (0) That the applicant has not violated any local or state law, statute, rule or regulation respecting the distribution, possession, or consumption of cannabis. (P) That the applicant has not knowingly made a false statement of material fact or has knowingly omitted to state a material fact in the application for a permit. (Q) That the applicant, his or her agent or employees, or any person who is exercising managerial authority on behalf of the applicant has not been convicted of a felony, or of a misdemeanor involving moral turpitude, or has engaged in misconduct related to the qualifications, functions or duties of a permittee. A conviction within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere. (R) That the applicant has not engaged in unlawful, fraudulent, unfair, or deceptive business acts or practices. (S) The applicant, his or her agent or employees, or any person who is exercising managerial authority on behalf of the applicant has been convicted of a felony, or of a misdemeanor involving moral turpitude, or has engaged in misconduct related to the 822219 qualifications, functions or duties of a permitee. A conviction within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere. (T) The Medical Marijuana Dispensary does comply with the location standards pursuant to 5-12.108. 5-12.112: Registration of new employees. A. As a further condition of approval of every Medical Marijuana Dispensary permit issued pursuant to this chapter, every owner or operator shall register every employee with the police department within five (5) business days of the commencement of the employee's period of employment at the Medical Marijuana Dispensary. B. Each employee shall be required to provide a recent color passport -quality photograph and, at the discretion of the Police Chief, shall allow himself or herself to be fingerprinted by the police department for purposes of identification. In addition, each new employee shall provide the following information on a form provided by the police department: 1. Name, current resident address, and telephone number. 2. Date of birth. 3. Height, weight, color of eyes, and hair. C. The information provided for purposes of this section shall be maintained by the police department as confidential information, and shall not be disclosed as public records unless pursuant to subpoena issued by a court of competent jurisdiction. D. Each owner or operator of a Medical Marijuana Dispensary shall maintain a current register of the names of all employees currently employed by the Medical Marijuana Dispensary, and shall disclose such registration for inspection by any police officer for purposes of determining compliance with the requirements of this section. E. Failure to register each new employee within five (5) days of the commencement of employment, or to maintain a current register of the names of all employees shall be deemed a violation of the conditions of the permit and may be considered grounds for suspension or revocation of the permit. 5-12.113: Suspension and revocation—Notice. A. Any permit issued under the terms of this chapter may be suspended or revoked by the City when it shall appears that the permittee has committed any one or more of the acts or omissions constituting the grounds for suspension or revocation under this chapter. B. No permit shall be revoked or suspended by virtue of this section until a hearing shall have been held by the City. Written notice of the time and place of such hearing shall be served upon the person to whom the permit was granted at least five (5) days prior to the date set for such hearing. Such notice shall contain a brief statement of the grounds to be relied upon for revoking or suspending such permit. Notice may be given either by personal delivery to the person to be notified, or by depositing it in the U.S. mail in a sealed envelope, postage prepaid, addressed to the person to be notified at his address as it appears in his application for a permit. 5-12.114. Suspension and Revocation—Grounds. It shall be a ground for suspension or revocation of a permit if any permittee or person, his or her agent, or employee: 822219 A. Does any act which violates any of the grounds set forth in Section 5-12.114, which sets forth the grounds for denial of a permit for the Medical Marijuana Dispensary; or B. Violates any other provision of this chapter or any local or state law, statute, rule or regulation relating to his or her permitted activity; or C. Engages in or permits misconduct substantially related to the qualifications, functions or duties of the permittee; or D. Conducts the permitted business in a manner contrary to the peace, health, or safety of the public, or E. Fails to take reasonable measures to control the establishment's patrons' conduct resulting in disturbances, vandalism, or crowd control problems occurring inside of or outside the premises, traffic control problems, or creation of a public or private nuisance, or obstruction of the business operation of another business; or F. Violates or fails to comply with the terms and conditions of the permit. 5-12.115: Suspension or revocation without hearing. If any person holding a permit or acting under the authority of such permit under this article is convicted of a public offense in any court for the violation of any law which relates to his or her permit, the City may revoke said permit forthwith without any further action thereof, other than giving notice of revocation to the permittee. 5-12.116: Display of permit. Every Medical Marijuana Dispensary shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such Medical Marijuana Dispensary in a conspicuous place so that the same may be readily seen by all persons entering the Medical Marijuana Dispensary. 5-12.117: Transfer of permits. A. A permittee shall not operate a Medical Marijuana Dispensary under the authority of a Medical Marijuana Dispensary permit at any place other than the address of the Medical Marijuana Dispensary stated in the application for the permit. B. A permittee shall not transfer ownership or control of a Medical Marijuana Dispensary or transfer a Medical Marijuana Dispensary permit to another person unless and until the transferee obtains an amendment to the permit from the City stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the City in accordance with Section 5-12.109 and accompanies the application with a transfer fee in an amount set by resolution of the City Council, and the City determines in accordance with Section 5-12.109 and Title 9 Chapter 2 that the transferee would be entitled to the issuance of an original permit. C. No permit may be transferred when the City has notified the permittee that the permit has been or may be suspended or revoked. D. Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void, and the permit shall be deemed revoked. 822219 5-12.118: Separate offense for each day. Any person that 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. 5-12.119: Public nuisance. Any use or condition caused or permitted to exist in violation of any of the provisions of this chapter shall be and is hereby declared a public nuisance and may be summarily abated by the City pursuant to Title 9 Chapter 8 of the Atascadero Municipal Code. 5-12.120: Criminal penalties. Any person who violates, causes, or permits another person to violate any provision of this chapter commits a misdemeanor. 5-12.121: Civil Injunction. The violation of any provision of this chapter shall be and is hereby declared to be contrary to the public interest and shall, at the discretion of City, create a cause of action for injunctive relief. 5-12.122: Administrative Remedies. In addition to the civil remedies and criminal penalties set forth above, any person that violates the provisions of this chapter may be subject to administrative remedies as set forth by City ordinance. 5-12.123: Severability. The provisions of this chapter are hereby declared to be severable. If any provision, clause, word, sentence, or paragraph of this chapter or the application thereof to any person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions of this chapter. 5-12.124: Time limit for filing applications for permit. All persons who possess an outstanding business license heretofore issued for the operation of a Medical Marijuana Dispensary, must apply for and obtain a Medical Marijuana Dispensary permit within ninety (90) days of the effective date of the ordinance codified in this chapter. Continued operation of a Medical Marijuana Dispensary without a permit more than ninety (90) days after the effective date of this ordinance shall constitute a violation of this chapter. Section 233 of Chapter 3 of Title 9 of the Atascadero Municipal Code is hereby amended to read as follows: 822219 9-3.233: Conditional Uses. Amend Conditional Uses to include: (s) Medical Marijuana Dispensary (See Chapter 12 of Title 5) 822219 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 Ellen Beraud Planning Commission Chairperson Attest: Warren M. Frace Planning Commission Secretary 822219 ITEM NUMBER: 3 DATE: 3-7-06 Atascadero Planning Commission Staff Report - Community Development Department Variance 2005-0009 Front Yard Fence Height (9186 Palomar Avenue/Roy) SUBJECT: A Variance request to allow a recently constructed six-foot high solid wood fence to remain within the front yard setback (within the Palomar Avenue right-of-way) and within a single-family residential neighborhood. RECOMMENDATION: Provide a determination for each of the required findings as listed within the staff report, prior to the following: 1. Adopt Resolution PC 2006-0022 approving Variance 2005-0009 based on findings. Situation and Facts: 1. Applicant / Owner: Eric Roy, 9186 Palomar Avenue, Atascadero, CA 93422 2. Project Location: 9186 Palomar Avenue, Atascadero, CA 93422 (San Luis Obispo County) APN 029-201-026 3. General Plan Designation: Single -Family Residential —Y (SFR -Y) 4. Zoning District: Residential Single -Family —Y (RSF-Y) 5. Existing Use: Single -Family Residence 6. Environmental Status: Categorical Exemption 15305. Minor Alterations in Land Use Limitations. Background: On February 21St, the Planning Commission voted to approve the proposed Variance on a 5-2 vote. The motion to approve and subsequent discussion did not include findings for approval. Thus, staff has included this item with each of the necessary findings for approval in this report for formal consideration. Findings: As analyzed in the previous staff report dated February 21, 2006 and discussed at the Planning Commission public hearing of the same date, fencing and screening is subject to conform to the Zoning Ordinance for fence height. However, the Planning Commission indicated that the fence shall be subject to a Variance application. Variance approval requires that all of the following findings be met by the Planning Commission. Additional Findings analysis is not included as the Commission provided no consensus regarding a determination for each of the required findings. Approval or conditional approval shall be granted only when the Planning Commission determines the variance satisfies the criteria set forth in Government Code Sections 65906 and 65906.5 by finding the following: (i) The Variance authorized does not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zoning district in which such property is situated: and, (ii) There are special circumstances applicable to the property, including size, shape, topography, location or surroundings, and because of these circumstances, the application of this title would deprive the property of privileges enjoyed by other property in the vicinity and in the same zoning district; and, (iii) The Variance does not authorize a use which is not otherwise authorized in the zoning district; and, (iv) The granting of such Variance does not, under the circumstances and conditions applied in the particular case, adversely affect the health or safety of persons, is not materially detrimental to the public welfare, nor injurious to nearby property or improvements. PREPARED BY: Steve McHarris, Deputy Community Development Director ATTACHMENTS: Attachment 1: Location and Vicinity Map Attachment 2: Site Plan Attachment 3: Aerial of Property Attachment 4: Site Photographs Attachment 5: Draft Resolution 2006-0022 Attachment 1: Location and Vicinity Map t, s 'y t - o Project Site 9186 Palomar Ave. General Plan Designation: -General Plan: Single Family Residential - Y Zoning Desi aQn tion: -Zoning District: Residential Single - Family — Y Attachment 2: Site Plan I SIP I[ I f. , - '. ,, . .. .t .- z iR 3 r.-, Rix ZI tl s. SIP I[ I f. , - '. ,, . .. .t .- z iR 3 r.-, Rix ZI 4F f ` y y •'� I Project Site :. Palomar Ave. Ow All ARL 1 F 1 f n 0 ATTACHMENT 5: Draft Resolution PC 2006-0022 Variance DRAFT RESOLUTION PC 2006-0022 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ATASCADERO, CALIFORNIA, APPROVING A VARIANCE TO ALLOW A SIX-FOOT HIGH FENCE LOCATED WITHIN THE FRONT YARD SETBACK, APN 029-201-026 (9186 Palomar Ave. / Roy) WHEREAS, an application has been received from Eric Roy, 9186 Palomar Avenue, Atascadero, CA 93422), Applicant and property owner, to consider a Variance to allow a six (6') foot fence located in the front setback at 9186 Palomar on APN 029-201-026; and, WHEREAS, the project is exempt from the requirements of the California Environmental Quality Act (CEQA) under Article 19, Section 15305, Class 5; and, WHEREAS, the Planning Commission of the City of Atascadero held a public hearing on February 21, 2006; and, NOW, THEREFORE, the Planning Commission of the City of Atascadero, hereby resolves to take the following actions: SECTION 1. Findings of Approval. The Planning Commission finds that: (i) The variance authorized does not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zoning district in which such property is situated: and (ii) There are special circumstances applicable to the property, including size, shape, topography, location, or surroundings, and because of these circumstances, the application of this title would deprive the property of privileges enjoyed by other property in the vicinity and in the same zoning district; and (iii) The variance does not authorize a use which is not otherwise authorized in the zoning district; and (iv) The granting of such variance does not, under the circumstances and conditions applied in the particular case, adversely affect the health or safety of persons, is not materially detrimental to the public welfare, nor injurious to nearby property or improvements. SECTION 2. Approval. The Planning Commission approves Variance 2005-0009 allowing a six (6') foot fence located in the front setback: 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: ABSTAIN: ADOPTED: CITY OF ATASCADERO, CA Ellen Beraud Planning Commission Chairperson Attest: Warren M. Frace Planning Commission Secretary