Board of Adjustments Staff Brief

Town of Chino Valley Development Services Department 1982 N. Voss Drive #203 Chino Valley, AZ 86323 928-636-4427 www.chinoaz.net Board of Adjustments Staff Brief Date: August 25, 2014 Agenda Item: VAR14-002 Expert Consulting/Arvin Saloum Location: 1821 E. Perkinsville Road Summary The purpose of this request is for relief from the setback requirements in Chapter 4.31 Medical Marijuana Dispensaries, Off-site Cultivation Sites, and Infusion Facilities; D Separation Requirements 4 Cultivation and/or infusion facilities in an AR (Agricultural/Residential) Zoning District, which requires a five hundred foot (500 ) separation from the common property line of any existing residential use to the exterior wall of the cultivation facility. The applicant, Expert Consulting/Arvin Saloum, is requesting a reduction from the five hundred (500 ) separation requirement to twenty feet (20 ) to accommodate a medical marijuana cultivation facility on their property located at 1821 East Perkinsville Road. Situation Analysis Applicants Expert Consulting acquired the subject property in May of 2013 with the intent of operating a medical marijuana cultivation facility. At that time, there were no specific restrictions on medical marijuana cultivation facilities; they simply had to meet the standards set forth in UDO Chapter 4.30 Commercial Greenhouse Standards. The standards were as follows: 1. 10 acre minimum

2. 300 minimum street frontage 3. 50 front yard setback 4. 50 side/street side yard setback 5. 35 maximum building height 6. 20 minimum distance between structures 7. 50% maximum lot coverage 8. 10% maximum floor area used for sale of farm produce when primarily grown on site 9. 20 accessory building setbacks (also 4.28) 10. Off-street Parking and Loading: Section 4.22 The Chino Valley Town Council held a Work/Study session on October 2, 2014 to discuss additional regulations for medical marijuana dispensaries, cultivation sites, and infusion facilities as stand-alone and combined uses (e.g., dispensary with infusion facility), among other subjects. After considerable discussion, staff was directed to draft an ordinance further regulating the manner and placement of activities and uses related to cultivating, processing, and dispensing of medical marijuana. On or about April 11, 2013, Arvin Saloum submitted a request for a Technical Review Meeting for the purpose of a pre-application review of site plans and requirements prior to submittal of a formal permit application. The meeting was held on April 24, 2013, and a summary letter was mailed to Saloum on April 29, 2013 containing comments that would need to be addressed prior to submittal of building and engineering plans. No further action or communication took place as a result of the comments issued from the pre-application review. A draft ordinance was provided to Town Council in advance of the November 12, 2013 regular meeting for discussion at said meeting. During the November 12, 2013 meeting, Council and staff reviewed the draft ordinance. At the regular meeting of the Planning and Zoning Commission on November 19, 2013, a Public Hearing was held to take comment on the proposed Ordinance, after proper notice as required by ARS 9-462.04. After considerable discussion by members of the public and Commissioners, the Planning and Zoning Commission voted unanimously to forward the proposed ordinance to the Town Council with a recommendation for approval. Ordinance No. 13-779 was heard by the Town Council during the regular December 10, 2014 meeting. After taking comment from the public and considerable discussion amongst councilmembers, the Council voted unanimously to approve the ordinance with one amendment which increased the separation between cultivation facilities and AR zoning districts from two hundred feet (200 ) to five hundred feet (500 ). In early 2014, Planner Mayday met with Perry Stone, agent for Expert Consultant to discuss requirements for submittal of a building permit application. At that time, agent Stone was advised that the Town Council had adopted additional regulations governing the manner and placement of medical marijuana related uses, and the previous site plan would not meet the newly adopted standards; the applicant had the option of reconfiguring the plan to meet the new standard or requesting a variance. On or about June 8, 2014, agent Stone submitted an

application on behalf of Expert Consulting requesting relief from the 500 separation requirement. Site Analysis The subject parcel lies south of East Perkinsville Road, approximately, and contains 15.53 acres, more or less. The current zoning is AR-5, and the Land Use designation is Medium Density Residential, 2 Acres or less. The subject parcel is located approximately three-quarters (3/4 s) of a mile east of the intersection of North Road 1 East and East Perkinsville Road. It encompasses 15.53 acres, exceeding the 10 acre minimum for medical marijuana cultivation facilities in AR zoning districts. At its widest point, the parcel is 684 feet wide, rendering it unbuildable for the owners intended purpose under current regulations governing manner and placement of medical marijuana cultivation facilities. A small portion of the northeast corner of the parcel lies in the floodplain/way, but does not significantly impact the development of the site. The site is challenged by its topography; the highest point in the southwest corner of the subject parcel is 4,600 feet, which slopes downward northeast to 4,580 feet in elevation over a distance of1,000 feet. This site is located approximately one and three-quarter miles from the intersection of State Route 89 and East Perkinsville Road. East Perkinsville Road serves as an arterial for the east side of Chino Valley, carrying both residents of the area as well as commercial, industrial, and recreational uses to Old Home Manor, the livestock auction, and two gravel mining operations. Statutory Requirement Threshold Analysis The applicant states that the Technical Review meeting that took place on April 24, 2014 constitutes an application and/or approval of the site plan then submitted, and therefore claims vested rights to the previous setback requirements of 50 (fifty feet) from the property boundary. The doctrine of vested rights protects property owners and developers from changes in zoning regulations when they have received a valid building permit or have been issued a written statement of approval from the jurisdiction, and made substantial expenditures as a result of the issuance of the permit prior to changes to the regulations in the zoning ordinance; the owner or developer then has the right to develop according to the standards that were in place when the permit was issued or approval granted. The Site Plan review and approval process for the Town of Chino Valley is set forth in Section 1.7.3 (C) of the UDO as follows : Prior to Development, construction, remodel, change or alteration of a project subject to Site Plan Review, the property owner or designated agent shall secure written approval from the Development Services Director, or his/her designee.

The application completed by Saloum clearly states that this is different from a Site Plan/Technical Review Committee Application and therefore does not constitute a Site Plan Review application; in addition, the required application fee was not submitted. Because there was no application to the Town by the applicant for site plan review, engineering permits, or building permits, there is no valid claim of vested rights and therefore, the applicant is now held to the requirements set forth in Ordinance 13-779 as approved by Town Council. Laws regulating the issuance of variances from zoning standards and requirements are set forth in ARS 9-462.06 G (2) and H (2). Those standards are as follows: 9-462.06 G (2) (A board of adjustment shall:) Hear and decided appeals for variances from the terms of the zoning ordinance only if, because of special circumstances applicable to the property, including its size, shape, topography, location, or surroundings, the strict application of the zoning ordinance will deprive such property of privileges enjoyed by other property of the same classification in the same zoning district. Any variance granted is subject to such conditions as will assure that the adjustment authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located. 9-462.06 H (2) (A board of adjustment may not:) Grant a variance if the special circumstances applicable to the property are self-imposed by the owner. While the subject parcel is challenged by its topography and shape, those factors do not render it unusable for any other purpose. The parcel may have been wide enough to accommodate the greenhouse cultivation of medical marijuana when the applicant purchased the property; however, upon the adoption of Ordinance 13-779 on December 10, 2013, the increased setbacks rendered the parcel unusable for cultivation of medical marijuana, but not for other greenhouse cultivation activities. The applicant is still entitled to use the subject property for greenhouse cultivation of anything but medical marijuana; the value of the property has not been diminished by excluding the cultivation of one product when numerous other plants can still be cultivated on a commercial scale on this property. In addition, the applicant can still use the property for all nine (9) permitted uses enumerated in UDO Chapter 3.6 Agricultural/Residential 5 acre minimum 3.6.2 Permitted Uses and fourteen (14) conditional uses similarly set forth in 3.6.3 Conditional Uses (Conditional Use Permit Required). Therefore, staff finds that the applicant has not met the special circumstances threshold as required by law, as the strict application of the zoning has not deprived the owner of privileges enjoyed by other property owners in the same zoning classification or district. The applicant s desire to grow medical marijuana, which in turn necessitates the variance request for relief from the separation requirements of the UDO, constitutes a self-imposed harm. In the application for the variance, Expert Consulting states due to the size of the property and with the new ordinance in place, the property is not useable without a variance. The applicant s inability to use the property for medical marijuana cultivation that requires a separation from residential uses that this parcel of land cannot achieve is a self-imposed harm. First, the

applicant could have formally submitted a site plan for review and approval prior to the change in the Ordinance, which would have vested his rights to the previous separation requirements. Second, there are numerous permitted uses to which the owner is entitled; insistence on this specific use imposes the harm, not a condition of the subject property that affects its use for any purpose set forth as a permitted use or a conditional use. Therefore, staff finds that the owner of the subject property has in fact imposed the harm upon himself that has caused the need for the variance from the separation requirements for the proposed use. In addition, any variance granted in this case would constitute a grant of special privileges not available to other properties in a similar zoning district. Many other applications for greenhouse uses in the AR-5 zoning district have been denied prima facia because they cannot meet the minimum required acreage, or the property owner wants to erect a greenhouse in excess of the minimum square footage allowed for a parcel less than 10 acres in size. Therefore, granting this variance would constitute a special privilege not extended to other owners of AR-5 properties that cannot meet the requirements set forth in the UDO. Findings of Fact 1. The applicant does not have vested rights to the previous 50 setbacks. 2. The applicant has not demonstrated that the property is unusable due to its size, shape, topography, location, or surroundings; in fact, numerous other permitted uses and conditional uses are available to the property owner, including commercial scale cultivation in greenhouses. 3. Because the property owner wants one singular use that requires additional separation from adjacent residential properties, the need for the variance is imposed by the applicant rather than the site itself and therefore constitutes a self-imposed harm. 4. Issuance of the variance from separation requirements would constitute a grant of special privileges as other applicants similarly situated in the same zoning district have been denied prima facia as they cannot meet the same standard from which the applicant is requesting relief. Recommendation Arizona Revised Statutes are very clear about the necessity of meeting the minimum threshold of special circumstances directly tied to the condition of the land in order for a Board of Adjustments to issue a variance from the regulations set forth in zoning code. At minimum, the request must be predicated on the shape, size, location, topography, or surroundings of the subject parcel; it must not constitute a grant of special privileges, and it must not be a selfimposed harm. In this case, staff finds that the applicant has not met any of the requirements set forth in ARS 9-462.06, and therefore recommends denial of the application. MOTION: I make a motion to deny the application of Expert Consulting/Saloum for a variance from UDO Chapter 4.31 Medical Marijuana Dispensaries, Off-site Cultivation Sites, and Infusion Facilities; D Separation Requirements 4 Cultivation and/or infusion facilities in an AR (Agricultural/Residential) Zoning District, from the required five hundred foot (500 ) separation from the common property line of any existing residential use to the exterior wall of the cultivation facility, to twenty feet (20 ).