REPORT TO CITY OF VISALIA PLANNING COMMISSION
HEARING DATE: October 9, 2023
PROJECT PLANNER: Paul Bernal, Community Development Director, City Planner Phone: (559) 713-4025
E-mail: [email protected]
SUBJECT: Zoning Text Amendment No. 2023-02: A request by the City of Visalia to amend Title 17 (Zoning) Chapter 17.25 Commercial, Mixed Use, Office, and Industrial Zones Use Matrix, and add Section 17.32.167 Delivery only medical marijuana retail.
STAFF RECOMMENDATION
Staff recommends that the Planning Commission adopt Resolution No. 2023-52, recommending that the City Council approve adoption of Zoning Text Amendment No. 2023-02, which amends Title 17, Chapter 17.25 Commercial, Mixed Use, Office, and Industrial Zones Use Matrix, and adds Section 17.32.167 Delivery only medical marijuana retail. This recommendation is based on the findings contained therein and summarized as follows:
The Zoning Text Amendment is consistent with the goals, objectives, and policies of the City’s General Plan.
The Zoning Text Amendment establishes objective standards to adequately address operational standards for delivery only medical marijuana retail establishments, consistent with the stated goals of the City of Visalia General Plan and Zoning Ordinance to preserve and promote the public health, safety, and welfare of the city while also adhering to CA Senate Bill (SB) 1186, the “Medicinal Cannabis Patients’ Right of Access Act”, which prohibits local agencies from enforcing any local regulations that prohibit the retail sale by delivery of medicinal cannabis.
RECOMMENDED MOTION
I move to recommend that the City Council approve Zoning Ordinance Text Amendment No. 2023-02 based on the findings and conditions in Resolution No. 2023-52.
REASON FOR ZONING TEXT AMENDMENT
Zoning Text Amendment (ZTA) No. 2023-02 is a city-initiated request to address imminent state mandated changes as a result of the passage of SB 1186, the “Medicinal Cannabis Patients’ Right of Access Act” which becomes effective on January 1, 2024. After this date, “delivery only” (i.e., delivery of medicinal cannabis) businesses will be permitted, subject to reasonable zoning regulations for public health and safety, within the City of Visalia. This means that warehouse-based businesses could legally operate in the City of Visalia as long as they sold medicinal cannabis via delivery only (i.e., no retail store front). Further, SB 1186 also provides that “the act may be enforced by an action for writ of mandate brought by a medicinal cannabis patient or their primary caregiver, a medicinal cannabis business, the Attorney General, or any other party authorized by law.” The City’s current municipal code prohibits cannabis businesses from operating within the City of Visalia, and with the requirement to permit cannabis businesses that operate under SB 1186, Visalia has no zoning or operational standards established specific to this type of use. ZTA No. 2023-02 establishes objective standards for permitting this type of use within our jurisdiction.
On July 17, 2023, staff conducted a work session with City Council on this subject and gained authority to proceed with municipal code updates to Title 5 Business Regulations, Title 8 Health and Safety, and Title 17 Zoning. The zoning ordinance update is seeking to implement reasonable zoning regulations in response to SB 1186. Staff also reviewed specific proposed edits with Council and garnered feedback on those proposed edits (see the Council Staff Report in Exhibit “A”).
The proposed Zoning Ordinance changes are as follows:
Amend Title 17, Chapter 17.25 Commercial, Mixed Use, Office, and Industrial Zones Use Matrix.
Add Section 17.32.167 Special Provisions, “Delivery only Medical Marijuana Retail.
In addition to the zoning text amendment changes, additional amendments to Title 5 Business Regulations and Title 8 Health and Safety are also required to address SB 1186. Although changes to those portions of the municipal code are not within the purview of the Planning Commission, staff has opted to provide an overview of these changes to provide greater context for the Planning Commission’s benefit on all changes required to the municipal code to comply with SB 1186. The following are the municipal code amendments to Title’s 5 and 8 as drafted by staff that will be presented to the City Council for their consideration.
Visalia Municipal Code Amendments to Title 5 and Title 8 Edits The following proposed changes will be taken directly to City Council for authority to implement:
Title 5 Business Regulations – Add Section 5.66 Regulations and Requirements for Cannabis Businesses Permitted to Operate Under California State Law.
Under this new section, the following standards under the purview of the Visalia Police Department are required:
Security plans, including cameras will be required for the site and the Visalia Police Department will be required to review and approve the security plans prior to these businesses being allowed to operate. Video cameras of all entrances, product storage area, building exterior, and parking area will be required as part of the security plan.
A site plan of the proposed business will be required.
These businesses will be required to be closed to the public. Sales will only be permitted by delivery. This is also covered in new Section 8.64 as noted below.
Delivery vehicles will be inspected by City and obtain an operating permit prior to use and must meet all state requirements for cannabis delivery vehicles.
Background inspections of all owners and all drivers will be required for the business to operate.
These businesses will be required to prevent the smell of marijuana from the business from being detected on adjacent private properties and the public right of way. This will require an odor control plan be prepared and submitted to the City for approval.
Title 8 Health and Safety – Amend Chapter 8.64 Public Use/Consumption of Medical Marijuana Staff will include modifications to portions of current municipal code Chapter 8.64 that broadly prohibit all commercial cannabis activities. This section will be revised to reflect state law mandating that delivery only businesses that sell medical marijuana will be a permitted use, subject to applicable zoning and operational requirements. This will also require the creation of new chapters on marijuana businesses to specify what is permitted and operational requirements and that states all other commercial cannabis activities remain prohibited. Amendments to this section include revision to the purpose and intent of this section, updating definitions found in this section, updating which commercial cannabis activities are still prohibited in the City of Visalia and adding new section 8.64.055 to address the delivery only of medical marijuana retail.
BACKGROUND
SB 1186 states that, “(a) A local jurisdiction shall not adopt or enforce any regulation that prohibits the retail sale by delivery within the local jurisdiction of medicinal cannabis to medicinal cannabis patients or their primary caregivers, or that otherwise has the effect of prohibiting the retail sale by delivery within the local jurisdiction of medicinal cannabis to medicinal cannabis patients or their primary caregivers by licensed medicinal cannabis businesses in a timely and readily accessible manner, and in types and quantities that are sufficient to meet demand from medicinal cannabis patients within the local jurisdiction, including, but not limited to, regulation of any of the following that has the effect of prohibiting the retail sale by delivery of medicinal cannabis:
The number of medicinal cannabis businesses authorized to deliver medicinal cannabis in the local jurisdiction.
The operating hours of medicinal cannabis businesses.
The number or frequency of sales by delivery of medicinal cannabis.
The types or quantities of medicinal cannabis authorized to be sold by delivery.
The establishment of physical premises from which retail sale by delivery of medicinal cannabis within the jurisdiction is conducted by a licensed non-storefront retailer, except that this paragraph shall not be construed to require the establishment of additional physical premises in a local jurisdiction that allowed medicinal cannabis retail as of January 1, 2022, and in which at least one physical premises engaged in the retail sale of medicinal cannabis, whether storefront or delivery, is already established.” However, SB 1186 also states, “(b) Nothing in this chapter shall be construed to prohibit the adoption or enforcement of reasonable regulations on retail sale by delivery of medicinal cannabis, including, but not limited to, reasonable regulations related to:
Zoning requirements that are not inconsistent with subdivision (a). If compliance with subdivision (a) would otherwise require a local jurisdiction to authorize a physical premises from which retail sale by delivery of medicinal cannabis within the jurisdiction is conducted, this paragraph shall not be construed to alter that requirement.
Security or public health and safety requirements.
Licensing requirements.
The imposition, collection, and remittance of any applicable state or local taxes upon retail sales occurring within the local jurisdiction.
Regulations consistent with requirements or restrictions imposed on cannabis businesses by this division or regulations issued under this division.
Nothing in this chapter shall be construed to limit or otherwise affect the ability of a local jurisdiction to adopt or enforce any regulations on commercial cannabis operations other than retail sale by delivery of medicinal cannabis in the local jurisdiction.” The City of Visalia Title 17 Zoning provides a precise and detailed plan for the use of land within the city, and more precisely works to achieve the policies and objectives of the General Plan. Similarly, of the various chapters in Title 17 Zoning, Chapter 17.25 establishes the list of land uses that are permitted or conditionally permitted in the various zone districts within the City of Visalia. Chapter 17.32 Special Provisions has served as a chapter of the Zoning Ordinance to address items which have not otherwise been explicitly address in specific zones but work to structure performance standards or operational standards for specific uses or within specified zones. Zoning Text Amendment (ZTA) No. 2023-02 is a city-initiated request to implement objective “delivery only medical marijuana retail operational standards” and identify which zone districts permit such use within the City of Visalia.
PROJECT EVALUATION
Based on the direction provided by City Council, staff analyzed suitably structured zoning standards. These standards, as outlined below, are crafted to preserve and promote the public health, safety, and welfare of the City while also adhering to Senate Bill (SB) 1186, the “Medicinal Cannabis Patients’ Right of Access Act.” Proposed Amendments to Title 17 Zoning
Commercial, Mixed Use, Office, and Industrial Zones Use Matrix. (VMC Section 17.25.030):
Add new line M46, “Delivery only medical marijuana retail” to be permitted in Light Industrial (I-L) and Industrial (I) zones in accordance with Chapters 17.32.167, 5.66 and 8.64.
Given the explicit delivery requirements under SB 1186, including the prohibition that no retail storefront be permitted, this use closely resembles that of a trucking/warehousing/internet fulfillment centers in many ways, and as such, these uses are listed as “Permitted” in both the Light Industrial and Industrial zones. Furthermore, trucking/warehousing/internet fulfillment centers are also “Permitted” in the Service Commercial (C-S) zone; however, staff is not recommending the C-S zone be listed due to a majority of this zoning designation being located in areas of the community (Ben Maddox corridor and East Main Street) that are in close proximity to sensitive land uses which would conflict with the proposed zoning objective standards described in greater detail below. Based on staff’s analysis, staff recommends “Delivery only medical marijuana retail” uses be “Permitted” in both the Light Industrial and Industrial zones.
Amend lines M46 – M65 accordingly (see Zone Matrix chart below).
Delivery only medical marijuana retail. (Add Section 17.32.167):
SB 1186 allows for local agencies to pass “reasonable zoning restrictions” and development conditions requirements on such delivery businesses to meet security, public health, and safety requirements. The draft ordinance addresses direction provided to staff to implement reasonable zoning regulations in response to SB 1186. The new code section to be added to the Special Provisions chapter of the Zoning Ordinance is listed below:
New Section 17.32.167 for “Delivery only medical marijuana retail” zoning objective standards.
Purpose and Intent. It is the purpose of this section to allow, in certain cases and subject to specific zoning restrictions and development and operational standards, the operation of delivery only medical marijuana retail facilities and to regulate such operations for the protection of the general health, safety and welfare of the citizens of the city.
Zoning Restrictions:
Use is permitted in the Light Industrial (I-L) Zone and Industrial (I) Zone.
Marijuana cultivation is not permitted.
Delivery only medical marijuana retail businesses shall not be located:
Within five hundred (500) feet of any existing or planned public, private, or parochial schools, elementary schools, middle schools, or high schools located either inside or outside of the city limits.
As used in this section, “existing” means existing at the time the permit application is submitted. “Planned” means property designated on the general plan of the city for such use, or other official planning documents of the city, or property owned or leased by the city for such use.
Parking requirements
One parking space for each employee during the shift of maximum employment, plus one parking space for each vehicle used in conjunction with the use is required.
Fencing and/or security gates
A fence that is a minimum height of seven feet, subject to the standards for fencing in industrial zones defined in Section 17.36.070, along with gates to secure the business and prevent public access shall be required.
Signage
All signage is subject to the requirements as defined in Section 17.48.
Other Delivery only medical marijuana retail standards
Delivery only medical marijuana retail establishments must also meet all requirements of Chapter 5.66 - Regulations and Requirements for Cannabis Businesses Permitted to Operate Under California State Law.
Additional ‘buffer’ options:
Staff recommends that a 500 foot ‘buffer’ from sensitive uses be established as noted in Section 17.36.167.B.3.i. of the proposed ordinance. A buffer greater than 500-feet potentially limits the number of Light Industrial zoned sites which would otherwise be eligible for a delivery business. Reducing the number of Light Industrial zoned properties could be construed as not meeting the intent of SB 1186 by limiting the number of eligible sites in the Light Industrial zone if a ‘buffer’ greater than 500-feet was implemented (see attached 750 ft. and 1,000 ft. map exhibits). Additionally, because onsite retail sales are prohibited, entry into these premises by the general public is not allowed, and safety plans are required per Title 5, Section 5.66, staff concludes typical concerns due to proximity to sensitive uses may not be as applicable.
Environmental Review:
The requested action is considered exempt under Section 15061(b)(3), Per Section 15061(b)(3) of the State Guidelines for the California Environmental Quality Act (CEQA). A Notice of Exemption has been prepared for the project because Section 15061 (b) (3) states that the project is exempted from CEQA if the activity is covered by the common sense exemption that CEQA applies only to projects that have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The proposed text amendment to establish objective standards for delivery only medical marijuana retail establishments will not have a significant effect on the environment.
RECOMMENDED FINDINGS
That the proposed Zone Text Amendment is consistent with the intent of the General Plan, and Zoning Ordinance, and is not detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity.
The Zoning Text Amendment establishes objective standards to adequately address operational standards for delivery only medical marijuana retail establishments, consistent with the stated goals of the City of Visalia General Plan and Zoning Ordinance to preserve and promote the public health, safety, and welfare of the city while also adhering to CA Senate Bill (SB) 1186, the “Medicinal Cannabis Patients’ Right of Access Act”, which prohibits local agencies from enforcing any local regulations that prohibit the retail sale by delivery of medicinal cannabis.
That the project is exempt from further review under the California Environmental Quality Act (CEQA) Guidelines section 15061(b)(3) (common sense exemption).
APPEAL INFORMATION
The Planning Commission’s recommendation on Zoning Ordinance Text Amendment No. 2023-02 is advisory only and is automatically referred to the City Council for final action.
Attachments:
Related Plans and Policies
Resolution No. 2023-52 - Draft Ordinance Delivery only medical marijuana retail and Amendment to Chapter 17.25 Commercial, Mixed Use, Office, and Industrial Zones Use Matrix.
Exhibit A – City Council Work Session Staff Report (July 17, 2023) Buffer maps (500-ft., 750-ft., 1000-ft.)
Senate Bill 1186
RELATED PLANS AND POLICIES
Chapter 17.44
ZONING AMENDMENTS
Sections:
17.44.010 Purpose.
17.44.020 Initiation.
17.44.030 Application procedures.
17.44.040 Public hearing—Notice.
17.44.050 Investigation and report.
17.44.060 Hearing.
17.44.070 Action of city planning commission.
17.44.090 Action of city council.
17.44.100 Change of zoning map.
17.44.110 New application.
17.44.120 Report by city planner.
17.44.010 Purpose.
As a general plan for Visalia is put into effect, there will be a need for changes in zoning boundaries and other regulations of this title. As the general plan is reviewed and revised periodically, other changes in the regulations of this title may be warranted. Such amendments shall be made in accordance with the procedure prescribed in this chapter.
17.44.020 Initiation.
A. A change in the boundaries of any zone may be initiated by the owner of the property within the area for which a change of zone is proposed or by his authorized agent. If the area for which a change of zone is proposed is in more than one ownership, all of the property owners or their authorized agents shall join in filing the application, unless included by planning commission resolution of intention.
B. A change in boundaries of any zone, or a change in a zone regulation, off-street parking or loading facilities requirements, general provision, exception or other provision may be initiated by the city planning commission or the city council in the form of a request to the commission that it consider a proposed change; provided, that in either case the procedure prescribed in Sections 17.44.040 and 17.44.090 shall be followed.
17.44.030 Application procedures.
A. A property owner or his authorized agent may file an application with the city planning commission for a change in zoning boundaries on a form prescribed by the commission and that said application shall include the following data:
1. Name and address of the applicant;
2. Statement that the applicant is the owner of the property for which the change in zoning boundaries is proposed, the authorized agent of the owner, or is or will be the plaintiff in an action in eminent domain to acquire the property involved;
3. Address and legal description of the property;
4. The application shall be accompanied by such sketches or drawings as may be necessary to clearly show the applicant's proposal;
5. Additional information as required by the historic preservation advisory board.
B. The application shall be accompanied by a fee set by resolution of the city council sufficient to cover the cost of processing the application.
17.44.040 Public hearing—Notice.
The city planning commission shall hold at least one public hearing on each application for a change in zone boundaries and on each proposal for a change in zone boundaries or of a zone regulation, off-street parking or loading facilities requirements, general provisions, exception or other provision of this title initiated by the commission or the city council. Notice of the public hearing shall be given not less than ten days or more than thirty (30) days prior to the date of the hearing by publication in a newspaper of general circulation within the city, and by mailing notice of the time and place of the hearing to property owners within three hundred (300) feet of the boundaries of the area occupied or to be occupied by the use that is the subject of the hearing.
17.44.050 Investigation and report.
The city planning staff shall make an investigation of the application or the proposal and shall prepare a report thereon that shall be submitted to the city planning commission.
17.44.060 Hearing.
A. At the public hearing, the city planning commission shall review the application or the proposal and may receive pertinent evidence as to why or how the proposed change is necessary to achieve the objectives of the zoning ordinance prescribed in Section 17.02.020.
B. If the commission's recommendation is to change property from one zone designation to another, the commission may recommend that conditions be imposed so as not to create problems adverse to the public health, safety and general welfare of the city and its residents.
17.44.070 Action of city planning commission.
The city planning commission shall make a specific finding as to whether the change is required to achieve the objectives of the zoning ordinance prescribed in Section 17.02.020. The commission shall transmit a report to the city council recommending that the application be granted, conditionally approved, or denied or that the proposal be adopted or rejected, together with one copy of the application, resolution of the commission or request of the Council, the sketches or drawings submitted and all other data filed therewith, the report of the city engineer and the findings of the commission.
17.44.080 [Reserved].
17.44.090 Action of city council.
A. Upon receipt of the resolution or report of the city planning commission, the city council shall review the application or the proposal and shall consider the resolution or report of the commission and the report of the city planning staff.
B. The city council shall make a specific finding as to whether the change is required to achieve the objectives of the zoning ordinance prescribed in Section 17.02.020. If the council finds that the change is required, it shall enact an ordinance amending the zoning map or an ordinance amending the regulations of this title, whichever is appropriate. The city council may impose conditions on the change of zone for the property where it finds that said conditions must be imposed so as not to create problems inimical to the public health, safety and general welfare of the city and its residents. If conditions are imposed on a change of zone, said conditions shall run with the land and shall not automatically be removed by a subsequent reclassification or change in ownership of the property. Said conditions may be removed only by the city council after recommendation by the planning commission. If the council finds that the change is not required, it shall deny the application or reject the proposal.
17.44.100 Change of zoning map.
A change in zone boundary shall be indicated on the zoning map.
17.44.110 New application.
Following the denial of an application for a change in a zone boundary, no application for the same or substantially the same change shall be filed within one year of the date of denial of the application.
17.44.120 Report by city planner.
On any amendment to the zoning code changing property from one zone classification to another, the city planner shall inform the planning commission and the city council of any conditions attached to previous zone changes as a result of action taken pursuant to Sections 17.44.060, 17.44.070 and 17.44.090.