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Staff Report
City Council
Item No. 5.A
Meeting Date: February 14, 2024
From: Andrew Firestine, Development Services Director
Title: Appeal of Variance 23-004 and Conditional Use Permit 23-003
City Council
RECOMMENDATION:
1. Conduct a public hearing on Variance 23 -004 and Conditional Use Permit 23 -003 to consider an appeal of the Planning’s Commission’s decision on December 6, 2023, particularly denial of Variance 23 -004 to delete the parking lot shading requirement for a proposed 1,953 square -foot cannabis dispensary located at 67455 East Palm Canyon Drive within the PCC (Planned Community Commercial) Zoning District and;
2. Overturn Planning Commission’s decision and approve Variance 23-004;
3. Remove Condition of Approval No. 3.49 of Conditional Use Permit 23 -003 requiring 50% of the parking lot to be shaded; and
4. Determine this project is categorically exempt from CEQA under Section No. 15303 (Class No. 3, New Construction or Conversion of Small Structures) of the State CEQA Guidelines
BACKGROUND:
On May 1, 2023, Chris McFadden (Applicant) representing Desert Kush, submitted Conditional Use Permit 23 -003 (hereinafter “CUP”) to establish a 1,953 square foot cannabis dispensary at 67455 East Palm Canyon Drive within an existing vacant building located in the PCC zone district (the "Project"). The initial completeness review letter, dated June 9, 2023, advised the Applicant that the project was incomplete, in part, because the site plan needed to show that a minimum of 50% of the parking spaces were shaded, which could be addressed through the installation of shade trees or a shade structure.
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In response, the Applicant requested a Variance to remove the 50% parking lot shading requirement due to: 1) the size of the parking lot; 2) a demonstration the building’s parapet height provides adequate shading and natural shading is provided given the natural sun path (as delineated on the site plan exhibit); 3) a reduction in visibility to the retail space from East Palm Canyon with a shading element; and 4) additional consideration for the lack of direct access to East Palm Canyon. As a result, Variance 23-004 (hereinafter “Variance”) was included as part of the proposed cannabis dispensary application for Desert Kush.
Given Staff’s experience and knowledge of past direction and practice by both the Architectural Review Committee (ARC) and Planning Commission on this requirement, Staff recommended moving the project forward through the process and scheduled the project for ARC review so their recommendation on the parking lot shading requirement could be obtained.
On November 1, 2023, the Project, including site and building façade improvements, was reviewed by ARC. The ARC received the project favorably and felt that given the operational aspects of the dispensary (customers are on site for less than 3 minutes) that the logic was sound in support of the Variance.
On December 6, 2023, the Planning Commission conducted a public hearing on the Project, including the Variance request to remove parking lot shading requirement.
Staff’s recommendation for the Project was approval of both the CUP and Variance.
The Planning Commission’s staff report also provided the ARC’s recommendation for approval.
During the meeting, two representatives of the neighboring church to the east spoke in opposition to the project based on land use and opposition to the dispensary entirely. A written letter of opposition was presented at the Planning Commission. The Church representative also expressed concern that a consumption lounge, which is permissible, could be established. However, the Applicant stated at the hearing that he doesn’t have any intention of establishing a consumption lounge.
After taking public testimony and deliberating on the Project, generally commenting that the loss of parking for additional landscaping or the addition of a shade structure were reasonable alternatives, the Planning Commission voted to approve the CUP and denied the Variance. In their action, the Planning Commission added new Condition No.
3.49 requiring 50% of the parking spaces be shaded.
The Applicant appealed the Planning Commission decision to deny the Variance and CUP Condition No. 3.49 in accordance with Section 9.72.080 of the Cathedral City Municipal Code (“CCMC”).
DISCUSSION:
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The proposed cannabis dispensary use is a conditionally permitted use in the PCC zone. The site is approximately 13,000 square feet in size and has an existing 1,953 square foot building that has been vacant for several years. In addition to establishing the cannabis dispensary, the building façade will be upgraded, street frontage landscaping will be refreshed, 8 parking spaces and a loading space will be provided, and the trash enclosure will be upgraded.
With the required street dedication along East Palm Canyon, the site area is reduced to approximately 9,900 square feet. The property does not have direct access to East Palm Canyon, rather public access is through the property to the east via an existing access easement. Between the existing 24 -foot-wide drive aisle and existing building, only a small sliver of area remains to accommodate the parking spaces, loading zone and trash enclosure.
In addition to identifying the site constraints in support of the Variance, the Planning Commission staff report noted the Variance would also allow for more visibility of the building and maximizes the space available within the parking lot.
The Applicant’s appeal statement reiterates the site constraints and that the introduction of additional landscaping to provide shading would lead to a reduction of parking where the site is already constrained and notes the shading requirement has been inconsistently applied since the design guidelines were adopted in 1987. Staff largely agrees with the Applicant’s statements, although staff would note this Project is distinct from other design reviews and tenant improvement permits approved elsewhere along the corridor in the sense that it is a CUP and CCMC Section 9.72.040(E) requires that:
All conditional use permits approved by the city council or planning commission are subject to all aspects of the design review process, including, but not limited to, review of architecture, building color, signage, landscaping, fencing, and parking.
Staff interprets Section 9.72.040(E) such that a CUP is required to meet the City’s design guidelines, which were originally adopted through Resolution No. 89 -95 and amended in 1997 (Design Guidelines). Chapter III, Project Guidelines of the Design Guidelines describes that:
Cathedral City supports a year -round population; therefore, parking lot design should take into consideration the desert summer sun. Fifty percent of all car spaces should be shaded by trees or carport/trellis structures. The size of new trees should be such that within five years they have grown to 3/4 of the full size.
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Where a project is not able to meet a requirement of the Cathedral City Municipal Code, in this case the full requirements of the Design Guidelines, a variance may be sought.
Staff has reviewed the variance requirements and finds the requirements are met for the Desert Kush Project and recommends that the Planning Commission decision to deny the Variance be overturned by granting the Appeal and further recommends that CUP Condition No. 3.49 be struck.
Variance 23-004
Pursuant to CCMC 9.76.030 (Variances) , certain findings must be made to grant a variance. In addition to the Variance justification filed by the Appellant, the following findings are made in support of granting a Variance 23-004:
A. That the granting of such variance will not be materially detrimental to other properties in the area or the permitted use thereof;
That the granting of the variance will not be materially detrimental to other properties in the area or the permitted uses thereof as the variance to remove the parking lot shading requirement for four spaces is not an operational requirement that would adversely impact the continued use and operation of surrounding properties.
B. That there are exceptional or extraordinary circumstances or conditions applicable to the property or to the intended use that do not apply to other properties in the same zone or vicinity;
The property is a small irregularly shaped 13,000 square foot parcel that tapers towards the south. Between the required 22 -foot roadway dedication that reduces the site to 9,900 square feet and the 24-foot-wide drive aisle, existing building and 5- foot-wide sidewalk that must remain in place, only a small sliver of area remains to accommodate the parking spaces, loading zone and trash enclosure. The incorporation of shading will encroach into the parking spaces and/or sidewalk further reducing the viability of the site. Therefore, exceptional circumstances exist that do not apply to other properties in the vicinity.
C. That the strict application of this title deprives such property of privileges enjoyed by other properties in the vicinity or in the same zone;
Strict application of this development standard deprives such property of privileges enjoyed by other properties in the vicinity or in the same zone in that the property is constrained by existing site conditions that cannot be overcome, such as the existing building and driveway location that must be maintained, thereby limiting the ability to feasibly install shading for four parking stalls. Other properties in the vicinity do not experience such limitations because the properties are either larger or are located within commercial centers that have reciprocal access and parking agreements.
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D. That the granting of the variance does not constitute a special privilege inconsistent with the limitations upon other properties in the vicinity or zone in which the property is located; and
The granting of the variance does not constitute a special privilege inconsistent with limitations of other property in the vicinity because the site has physical constraints, including the small size of the property and existing location of the building and drive aisle that limit the ability to shade four parking spaces without further reducing the viability of the site. Surrounding properties are either larger or enjoy being located in commercial centers with shared parking provisions.
E. That the granting of the variance is compatible with the objectives, policies, general land uses and programs specified in any adopted general plan.
The granting of the variance is compatible with the general plan as it will facilitate the establishment of a cannabis dispensary use within a vacant and underutilized site.
Granting of the variance will allow establishment of a cannabis dispensary use in the Commercial General land use designation consistent with Table LU -2 (Land Use Designations) which states that the purpose of the Commercial General land use designation is intended for a wide variety of commercial centers, including the sale of cannabis products with approval of a discretionary permit.
Environmental Review
Staff has determined that the project meets all of the conditions for a Categorical Exemption under Section No. 15303 (Class No. 3, New Construction or Conversion of Small Structures) of the State CEQA Guidelines, which exempts a store or similar structure not involving the use of significant amounts of hazardous substances, and not exceeding 2,500 square feet in floor area.
NOTE: The City of Cathedral City Planning Department is custodian of the documents or other material, which constitute the record of proceedings upon which this decision is based.
Public Notification
This Project and the environmental determination were publicly noticed in accordance with the requirements contained in the City Municipal Code and the California Environmental Quality Act (CEQA).
FISCAL IMPACT:
There is no fiscal impact as the appeal filing fee was paid with the submittal of the Appeal application.
FIVE-YEAR STRATEGIC PLAN:
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Goal F - EMBRACING, INCLUSIVE COMMUNITY
Objective: Cathedral City is valued and respected as a community that welcomes and embraces diversity, has an abundance of high quality and affordable housing options and vibrant businesses. Our neighborhoods are attractive, well -maintained, and issues surrounding homelessness have been compassionately addressed with thoughtful, coordinated, and collaborative programs.
ATTACHMENTS:
APPEAL APPLICATION
Planning Commission - Report and Attachments
Glory to God Opposition Letter
12-6-2023 PC Meeting Minutes
CUP 23-003-Conditions of Approval-City Council
Proposed Site Plan
Proposed Elevations
Landscape Plan