The URL can be used to link to this page

Home My WebLink AboutA2. Zoning Variance KannaKare15434 Staff Report for the KannaKare Variance Page 1 of 16 15434 Staff Report for the KannaKare Variance Date: City Commission Public Hearing November 2, 2015 Project Description: A zoning variance application to allow the establishment of a medical marijuana dispensary less than 1,000 lineal feet from a school facility as required by Section 38.22.220.A, BMC. Project Location: 411 West Mendenhall Street. The property is zoned B-2 District (Community Business District) and is legally described as Lots 16 & 17, Block D, Tracy’s 2nd Addition to the City of Bozeman, situated in the Southeast One-Quarter (SE ¼) of the Northeast One-Quarter (NE ¼) of Section 12, T2S, R5E, City of Bozeman, Gallatin County, Montana. Recommendation: Not to Approve Recommended Motion: “Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 15-434 and move to approve the KannaKare Health Services variance with conditions and subject to all applicable code provisions.” Report Date: Wednesday, October 28, 2015 Staff Contact: Tom Rogers, Senior Planner Agenda Item Type: Action (Quasi Judicial) EXECUTIVE SUMMARY Unresolved Issues There are no unresolved issues. Project Summary The Applicant and property owner desire to relocate their existing medical marijuana dispensary from their current location in the Bozeman Medical Arts Center to their property addressed at 411 West Mendenhall Street. The property is currently vacant but most recently housed the Oboz Footwear corporate office. No exterior modifications are proposed or needed for the proposed use. There is no internal modification requiring additional review by the Planning Department. Any interior modifications may require the appropriate building permits and or a change of use permit. Staff cannot support the requested variance based on the specific criteria used to evaluate zoning variances. However, in the event the Commission makes alternate finding to grant the request, Staff has provided conditions of approval to insure full compliance with adopted code. Should the City Commission wish to reconsider the 1,000 foot separation requirement from school district property the appropriate mechanism to do so is a municipal code text amendment. 221 15434 Staff Report for the KannaKare Variance Page 2 of 16 Alternatives 1. Deny the application based on the Commission’s findings of non-compliance with the applicable variance criteria contained within the staff report; 2. Open and continue the public hearing on the application, with specific direction to Staff or the applicant to supply additional information or to address specific items. 3. Approve the application based on the Commission’s findings of compliance with the applicable variance criteria contained within the staff report with the recommended conditions; 4. Approve the application based on the Commission’s findings of compliance with the applicable variance criteria contained within the staff report with modifications to the recommended conditions; TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 1 Unresolved Issues ............................................................................................................... 1 Project Summary ................................................................................................................. 1 Alternatives ......................................................................................................................... 2 SECTION 1 - MAP SERIES .................................................................................................... 3 SECTION 2 - RECOMMENDED CONDITIONS OF APPROVAL ...................................... 9 SECTION 3 - CODE REQUIREMENTS REQUIRING PLAN CORRECTIONS ................. 9 SECTION 4 - RECOMMENDATION AND FUTURE ACTIONS ........................................ 9 SECTION 5 - STAFF ANALYSIS ........................................................................................... 9 Zoning Variance Review Criteria – Section 38.22.220 ...................................................... 9 APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY............................... 11 APPENDIX B – DETAILED PROJECT DESCRIPTION AND BACKGROUND.............. 15 APPENDIX C – NOTICING AND PUBLIC COMMENT ................................................... 16 APPENDIX E – OWNER INFORMATION AND REVIEWING STAFF ........................... 16 FISCAL EFFECTS ................................................................................................................. 16 ATTACHMENTS ................................................................................................................... 16 222 15434 Staff Report for the KannaKare Variance Page 3 of 16 SECTION 1 - MAP SERIES 223 15434 Staff Report for the KannaKare Variance Page 4 of 16 224 15434 Staff Report for the KannaKare Variance Page 5 of 16 225 15434 Staff Report for the KannaKare Variance Page 6 of 16 226 15434 Staff Report for the KannaKare Variance Page 7 of 16 Main Level 227 15434 Staff Report for the KannaKare Variance Page 8 of 16 Second Level 228 15434 Staff Report for the KannaKare Variance Page 9 of 16 SECTION 2 - RECOMMENDED CONDITIONS OF APPROVAL 1. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or state law. 2. Establishing a medical marijuana facility may result in a change in the designation of building code occupancy type. A change in use or occupancy type may require physical modifications to the structure which must be approved by the building division prior to any construction as required by section 38.34.100. 3. Any expansion of this use or facility is not permitted unless reviewed and approved as required under the applicable regulations of the Bozeman Municipal Code. SECTION 3 - CODE REQUIREMENTS REQUIRING PLAN CORRECTIONS A. None. SECTION 4 - RECOMMENDATION AND FUTURE ACTIONS Project Name: Kannakare Health Services Variance File No.: 15-434 The Development Review Committee (DRC) considered the variance application to allow the establishment of a medical marijuana dispensary less than 1,000 feet from an administrative facility property owned by Bozeman School District No. 7. The DRC did not identify any building, site or related infrastructure issues that would preclude the property to function as requested. The City Commission is scheduled to hold a public hearing and review the application at their November 2, 2015 meeting. SECTION 5 - STAFF ANALYSIS Analysis and resulting recommendations are based on the entirety of the application materials, municipal codes, standards, and plans, public comment, and all other materials available during the review period. Collectively this information is the record of the review. The analysis in this report is a summary of the completed review. Zoning Variance Review Criteria –Section 38.35.060.C, BMC Section 38.22.220 is the section from which a variance is sought. In acting on an application for a variance, the review authority shall designate such lawful conditions as will secure substantial protection for the public health, safety and general welfare, and shall issue written decisions setting forth factual evidence that the variance meets the standards of MCA 76-2-323 in that the variance: 229 15434 Staff Report for the KannaKare Variance Page 10 of 16 Section 38.22.220.A.1 BMC, states, “Unless specifically exempted, any person or an existing or proposed entity intending to conduct activities which meet the definitions of "agriculture," "manufacturing," "office" or "retail" as established in article 42 of this chapter which is for the purpose of growing, processing, distribution, and/or any other activity related to medical marijuana shall in addition to this section, comply with all other provisions of the this Code, and shall not be located within 1,000 linear feet of the exterior property line of: a. All schools or facilities owned or operated by Bozeman School District 7 whether located inside or outside the city limits; or b. All private schools, not including home schools, whether located inside or outside the city limits, which provide instruction in the class range from kindergarten to 12th grade and which are either subject to MCA 20-5-109, or listed as a kindergarten provider by the county superintendent of schools. c. For purposes of this section, specified distances will be measured in a straight line, without regard to intervening structures from the property line of a school as stated in subsections 1a and b of this section, regardless of whether those schools are located within the jurisdictional limits of the city, to the property line of the business providing medical marijuana. 1. Will not be contrary to and will serve the public interest; Staff finds that approving the variance will be contrary to the public interest. No public comment has been received as of the date of this report. The Wilson School administrative building is approximately 444 feet from the subject property and is the primary trigger for this application. The building is used periodically for musical and other events associated with the students in the various schools in the district. The second school property within 1,000 feet is northern 2/3 of the green space adjacent to the Emerson Cultural Center. The southern 1/3 of the lawn is owned by the Emerson Cultural Center. Finally, School District has indicated they are less concerned locating these facilities within this buffer zone for administrative buildings and properties than facilities that host students. The subject property falls within the B-2 Zoning District which allows for a variety of commercial uses. In this case, retail sales are a permitted use within the District. Arguments in support for the variance is provided by the Applicant and is attached to this report. The applicant makes arguments of why the requested variance is favorable to them but not to the community at large. The variance does not enable a public benefit that cannot be provided in another location in the community which complies with established requirements. 2. Is necessary, owing to conditions unique to the property, to avoid an unnecessary hardship which would unavoidably result from the enforcement of the literal meaning of this chapter: Staff finds that the requested variance is not necessary due to a condition unique to the property. The numerical separation standard applies to all properties in all districts and is not unique to the subject property. Financial hardship is not considered when making a determination to support or not support a variance request. As illustrated in Section 1 – Map Series above the subject property is approximately 444 feet from the nearest school property. 230 15434 Staff Report for the KannaKare Variance Page 11 of 16 The applicant has provided support for the variance in the submittal which is attached to this report. a. Hardship does not include difficulties arising from actions, or otherwise be self- imposed, by the applicant or previous predecessors in interest, or potential for greater financial returns; and The application does not prove sufficient hardship to support the variance criteria. b. Conditions unique to the property may include, but are not limited to, slope, presence of watercourses, after the fact imposition of additional regulations on previously lawful lots, and governmental actions outside of the owners control; The site hosts an existing commercial structure. No modifications or alterations are being proposed at this time. As noted earlier the structure has been used for other commercial activities permitted within the zoning district. There are no impediments to the proposed use except for the specific siting requirements found in Section 38.22.2220, BMC that are triggering the variance request. Therefore, Staff does not find conditions unique to the property meeting this criterion. 3. Will observe the spirit of this chapter, including the adopted growth policy, and do substantial justice; The subject property is zoned B-2 which allows for the proposed activity of retail sales. The property is in close proximity to potential patients and numerous transportation alternatives including pedestrian, bicycle, bus service and more than adequate vehicular capacity which further policies in the Bozeman Community Plan. Also, the Community Plan sets forth economic development goals to support business creation, retention emphasizing small business, green business, and e-business (Objective ED-1.1). Conclusion. Although some of the variance criteria have been met others have not. Therefore, in conclusion, considering the totality of the analysis above and the information provided staff found the burden of proof has not been overcome and cannot support the variance request. The requested variance does not meet all of the criteria for approval of a variance. Should the City Commission wish to reconsider the required 1,000 foot separation the appropriate mechanism to do so is a municipal code text amendment. APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY Zoning Designation and Land Uses: The subject property is zoned as B-2 (Community Business District). The intent of the B-2 community business district is to provide for a broad range of mutually supportive retail and service functions located in clustered areas bordered on one or more sides by limited access arterial streets. Authorized uses: 231 15434 Staff Report for the KannaKare Variance Page 12 of 16 Table 38.10.020 Table of Commercial Uses Authorized Uses B-1 B- 2 B-3 Ambulance service — P P Apartments and apartment buildings6, as defined in this chapter P P1/ C P3 Arts and entertainment center, as defined in this chapter P P P Automobile fuel sales or repair, as defined in this chapter C C C Automobile parking lot or garage (public or private) P P P Automobile washing establishment C P C Banks and other financial institutions P P P Business, technical or vocational school — C P3 Bus terminals — C C Community centers P P P3 Community residential facilities with eight or fewer residents P P1/ C P3 Community residential facilities serving nine or more residents — C — Convenience uses C P C Convenience use restaurant P P P Day care centers P P P Essential services Type I A A A Essential services Type II P P P Essential services Type III C9 P C9 Extended-stay lodgings — P P Food processing facilities — C — 232 15434 Staff Report for the KannaKare Variance Page 13 of 16 Frozen food storage and locker rental — P — Health and exercise establishments P1/C P P Hospitals — P C Hotel or motel — P P Laboratories, research and diagnostic — P P3 Laundry, dry cleaning — C C Light goods repair, as defined in this chapter — C A Lodginghouses — C C3 Manufacturing, artisan P P P8 Manufacturing, light — C C3 Manufacturing, light and completely indoors — C — Mortuary — C C Museum — C C Medical and dental clinics P1/C P P Meeting hall — P P Offices, as defined in this chapter P1/C P P3 Other buildings and structures typically accessory to permitted uses A A A Parking facilities P P P3 Personal and convenience services, as defined in this chapter P P P Pet grooming shop P P P Printing offices and publishing establishments — — C Private club, fraternity, sorority or lodge — P P Public buildings P P P Refuse and recycling containers A A A 233 15434 Staff Report for the KannaKare Variance Page 14 of 16 Research laboratories — P P Restaurants P5 P P Retail uses, as defined in this chapter P2 P2 P2 Retail, large scale — P — Sales of alcohol for on-premises consumption7 C C C Sign paint shops (not including neon sign fabrication) — P C Upholstery shops (excluding on site upholstery service for cars, boats, trailers, trucks and other motorized vehicles requiring overnight storage) — P P3 Veterinary clinic — C — Wholesale distributors with on-premises retail outlets, providing warehousing is limited to commodities which are sold on the premises — C — Wholesale establishments that use samples, but do not stock on premises — P P Any use, except adult businesses and casinos approved as part of a planned unit development subject to the provisions of article 20 of this chapter C C C Notes: 1 When located on the second or subsequent floor, or basement as defined in article 42 of this chapter. 2 Excluding adult businesses, and large scale retail, as they are defined in article 42 of this chapter. 3 Except on ground floor in the core area as defined in this article. 4 Private arts instruction shall only be on the second or subsequent floor in the core area as defined in this article. 5 Exclusive of drive-ins. 6 May be subject to the provisions of chapter 10, article 8. 7 Also subject to chapter 4, article 2. 8 For uses in the downtown core as described in 38.10.010.A.3.a and located on the ground floor adjoining Main Street, a high volume, pedestrian-oriented use adjoining the building's entrance on Main Street is required. 9 Only allowed when service may not be provided from an alternative site or a less intensive installation or set of installations. 234 15434 Staff Report for the KannaKare Variance Page 15 of 16 Adopted Growth Policy Designation: The subject property is designated as “Community Commercial Mixed Use”. Activities within this land use category are the basic employment and services necessary for a vibrant community. Establishments located within these categories draw from the community as a whole for their employee and customer base and are sized accordingly. A broad range of functions including retail, education, professional and personal services, offices, residences, and general service activities typify this designation. In the “center-based” land use pattern, Community Commercial Mixed Use areas are integrated with significant transportation corridors, including transit and non-automotive routes, to facilitate efficient travel opportunities. The density of development is expected to be higher than currently seen in most commercial areas in Bozeman and should include multi-story buildings. A Floor Area Ratio in excess of 0.5 is desired. It is desirable to allow residences on upper floors, in appropriate circumstances. Urban streetscapes, plazas, outdoor seating, public art, and hardscaped open space and park amenities are anticipated, appropriately designed for an urban character. Placed in proximity to significant streets and intersections, an equal emphasis on vehicle, pedestrian, bicycle, and transit circulation shall be provided. High density residential areas are expected in close proximity. Including residential units on sites within this category, typically on upper floors, will facilitate the provision of services and opportunities to persons without requiring the use of an automobile. The Community Commercial Mixed Use category is distributed at two different scales to serve different purposes. Large Community Commercial Mixed Use areas are significant in size and are activity centers for an area of several square miles surrounding them. These are intended to service the larger community as well as adjacent neighborhoods and are typically distributed on a one mile radius. Smaller Community Commercial areas are usually in the 10-15 acre size range and are intended to provide primarily local service to an area of approximately one-half mile radius. These commercial centers support and help give identity to individual neighborhoods by providing a visible and distinctive focal point. They should typically be located on one or two quadrants of intersections of arterials and/or collectors. Although a broad range of uses may be appropriate in both types of locations the size and scale is to be smaller within the local service placements. Mixed use areas should be developed in an integrated, pedestrian friendly manner and should not be overly dominated by any single land use. Higher intensity employment and residential uses are encouraged in the core of the area or adjacent to significant streets and intersections. As needed, building height transitions should be provided to be compatible with adjacent development. APPENDIX B – DETAILED PROJECT DESCRIPTION AND BACKGROUND A zoning variance application was submitted to the Community Development Department for 411 W. Mendenhall Street to change the use from office to retail and allow a medical marijuana dispensary to be closer than 1,000 feet from property owned by Bozeman School District No. 7. No exterior modifications are proposed or needed for the proposed use. There is no internal modification requiring additional review by the Planning Department. Any interior modifications may require the appropriate building permits and or a change of use permit. 235 15434 Staff Report for the KannaKare Variance Page 16 of 16 The Applicant and property owner desire to relocate their existing medical marijuana dispensary from their current location in the Bozeman Medical Arts Center to their property addressed at 411 West Mendenhall Street. The property is currently vacant but most recently housed the Oboz Footwear corporate office. APPENDIX C – NOTICING AND PUBLIC COMMENT Noticing was provided pursuant to Section 38.40.030, BMC. Notice was sent to property owners within 200 feet of the exterior boundaries of the property via USPS first class mail at least 15 and not more than 45 days prior to the expected decision by the City Commission. Notice will be published in the Bozeman Daily Chronicle on October 18 & 25, 2015. In addition, notice was posted on site on October 16, 2015. APPENDIX E – OWNER INFORMATION AND REVIEWING STAFF Owners: Lee James, LLC, 508 W. Arnold Street, Bozeman, MT 59715 Applicants: Misty Carey, 508 W. Arnold Street, Bozeman, MT 59715 Representative: Bruce Brown, Brown, Dinwiddie & Mazurek, PLLC, 611 W. Main, Bozeman, MT 59715 Report By: Tom Rogers, Senior Planner FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this application. ATTACHMENTS The full application and file of record can be viewed at the Bozeman Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Applicant’s submittal materials 236 237 238 239 September 16, 2015 KannaKare Health Services, LLC Misty Carey 411 West Mendenhall Bozeman, MT 59715 Bozeman Municipal Code Section proposed for variance: Sec. 38.22.220 Medical Marijuana Project Narrative Description of Variance Requested My partner, Bernard Buelow, and I own a property at 411 West Mendenhall. This building has been leased by Oboz Footwear for the past seven years and they currently occupy all three units. Oboz recently gave notice that they are vacating the building in October, 2015. I also own a medical cannabis business called KannaKare Health Services LLC, serving the patients of Gallatin Valley since 2007. Our current dispensary is in the Medical Arts Building at 300 N. Willson, #105A. I would very much like to move KannaKare to the free‐standing building that Bernie and I own on Mendenhall. Our property on Mendenhall is approximately 455 feet from Willson School which would disqualify it from use in medical marijuana. However, the Willson building is not used as a school and there are no children attending classes there. Variance in Accordance with Public Interest Kannakare Health Services is a medically‐focused, adults‐only medical cannabis provider. Our average patient age is 50‐years‐old. We are proud to employ Jean S., who at 67‐years‐old, claims to be the valley’s oldest “bud‐ tender.” We have no interest in providing cannabis to young people unless medically necessary. One of our youngest patients, Josh B. at 32‐years‐old, lost both hands and both feet from a systemic infection and we helped him through both his heart surgery and rehabilitation. 240 The variance requested is in accordance with Public Interest. Our presence on Mendenhall will not affect school children and not increase the availability of marijuana to them. Requested Variance is Necessary While residential property has finally rebounded from the market crash of ’08, commercial property has continued to be soft. Due to expansionary building in the west valley, many commercial properties sit empty. Tom Cook, our next door neighbor at 407 West Mendenhall, has had his building listed for lease since the beginning of the summer and has yet to find a tenant. Although it is likely that the small residential unit upstairs will rent quickly, the other two commercial spaces, like Mr. Cook’s building, may be unoccupied for some time. Having my building sit empty for that length of time would be a great financial hardship for me. My other business, Kannakare Health Services, would also benefit greatly from being in a free‐standing building. While Debbie Smith at the Medical Arts Center, a cancer survivor herself, has been very supportive, we struggle to contain the cannabis smell in a shared building. Variance Observes the Spirit of the Chapter The reason listed for enacting the original Emergency Interim Zoning Ordinance No. 1782 by the City of Bozeman was “fear of medical marijuana facilities to surface in areas adjacent to schools.” It also stated that the City Commissioners believed that “medical marijuana facilities located within 1000 feet of a school facility could have a detrimental effect on school‐aged children.” The original separation requirements in Section 18.40.220 of the original ordinance No. 1782 are as follows: A. “Any school operated by School District 7 within the City of Bozeman offering any classes in the range from Kindergarten to 12th grade; B. Any private school within the City of Bozeman offering any classes in the range from Kindergarten to 12th grade…..” 241 These separation requirements were then amended in the current Ordinance to read: 1. “All schools or facilities owned or operated by Bozeman School District 7 whether located inside or outside the city limits; 2. All private schools, not including home schools, whether located inside or outside the city limits, which provide instruction in the class range from Kindergarten to 12th grade…” The Willson building no longer functions as a school for children. Part of the property has been sold to East Willson, LLC, a private company, and is in the process of being converted into residential condominiums. The balance of the building currently houses a recently renovated auditorium, offices and adult education classrooms. The sale of property to East Willson, LLC seems to suggest that the Willson building will never again be used as a school. As the spirit of the law was to protect exposure of young children from medical cannabis shops, this variance is in no way in conflict with that spirit. Conclusion KannaKare Health Services is likely the most reputable medical cannabis organization in the Gallatin Valley. Kannakare is discreet and professional. We wear white coats and help older, sick people. As the owner of the building, I would in no way want to decrease the property values in the area. One of the key benefits of occupying the building myself is the opportunity to keep the building and grounds well‐maintained. 242 243 244