1 From: Jennifer McGrath <[email protected]>
Sent: Monday, February 14, 2022 8:29 AM
To: Sonny Dhaliwal; Diane Lazard; Paul Akinjo; Minnie Diallo; Jennifer Torres - O'Callaghan; website_cco; City Manager Website Directed E-Mail; Salvador Navarrete Subject: Public Comment for City Council Meeting 2/14/22 - Agenda Item 5.3 Selection Process and Issuance of Request for Proposals for Cannabis Dispensary Follow Up Flag: Follow up
Flag Status: Flagged
Mayor and Members of the City Council -
The original proposal for a cannabis licensing process relied upon existing staff and resources, like any other land-use process. It was a simple first-come, first serve process utilizing the existing land use process for a Conditional Use Permit and Development Agreement. As a pre-qualification, the applicant would need to submit proof of securing a property by lease or purchase agreement and property owner consent to a cannabis use on the property. The applicant would also need to pass all required background checks.
Once pre-qualified, the applicant would apply for a Conditional Use Permit and enter into negotiations of a Development Agreement with the City. All of the Proposal Requirements on pages 268-272 of your Agenda Packet could be required via the Development Agreement or as Conditions of Approval of the Conditional Use Permit. For example, the Security Guard requirement on page 281 of your Agenda Packet (Section 4(g)) is not only a business decision based on location, customer count, and risk, but is also a decision better left to law enforcement upon review of the land use.
The decision to enter into the Development Agreement is solely within the jurisdiction of the Planning Commission and City Council. If acceptable terms are not agreed upon, then the City can reject the Development Agreement. The risk of litigation is no greater than any other land use entitlement.
The proposed process appears to be an amalgamation of several other licensing processes from other local jurisdictions and is problematic. First, it is unnecessarily burdensome, staff intensive, time intensive, and puts the City at a significant risk of litigation from an aggrieved party. Second, Lathrop Municipal Code Section
5.26.050(a) specifically makes a Request for Proposal process as optional. Third, and most importantly, permitting an application to be submitted without proof of lease or purchase and without property owner consent will invite more applications for potential businesses that may never become viable and the Staff Report and recommended policies do not provide for a wait list of qualified applicants or a process by which an applicant can change locations.
The proposed process provides only 29 days to prepare and submit a significant amount of information, including confidential financial documents and a Security Plan. (Page limit is 100.) It is unclear why there is any deadline to submit for what is basically a land use permit. The City's Zoning and Sensitive Use Regulations will vastly control the applicant pool. In addition, staff time and public monies will be expended on reviewing all applications received risking litigation yet again.
None of the criteria recommended on pages 280-282 of your Agenda Packet came from the City Council in any of the several Council meetings on the topic. Further, there is no methodology in determining who "scored" better or is better suited for the one dispensary opportunity in the City of Lathrop. That issue, in and of itself, Item 5.3 Public Comment
Provided by Jennifer McGrath
2 risks litigation by an aggrieved party on several grounds. For example, on page 270 of your Agenda Packet, there is a list of Community Benefits that is vague and without sufficient detail to determine what would or would not be acceptable. If an applicant submits a proposal and is rejected, this section alone would be grounds for litigation.
In addition, the Staff Report states that the local residency and prior business ownership requirements must be removed. Not only am I unaware of any case law supporting that position, it is inconsistent with the requirement under Section 3(a) on page 280 of your Agenda Packet that a business is and/or was associated with a noncannabis-related business in the City of Lathrop.
Several requirements go beyond State law (Sections 4(g), 4(i) and 4(m) and Sections 5(a) - (c)) on page 281 of your Agenda Packet. As there is no social equity or local preference, it is unclear what Sections 6 (a)-(b) add to the process.
There are several sections of the Criterion Matrix (page 280) that are susceptible to challenges for vagueness, misinterpretation and subjectivity that put the City at risk of litigation. Section 8(c) is definitely problematic and risks litigation. It is more prudent to require the 5% Development Agreement fee which will go into the General Fund for City Council's discretionary use.
In closing, the original proposal was simple, cost-effective, time-effective, provided an opportunity for the City of Lathrop to have a viable retail dispensary within 6-9 months, and exposed the City to little or no risk of litigation.
Jennifer McGrath
Law Offices of Jennifer McGrath
7755 Center Avenue, Suite 1100
Huntington Beach CA 92647
(714) 231-2124
https://www.jennifermcgrath.com/