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HomeMy WebLinkAbout09-13-2016 PC Minutes l � ' Planning Commission Minutes - " Tuesday, September 13, 2016 1. CALL TO ORDER & PLEDGE OF ALLEGIENCE TO THE FLAG A regular meeting of the City of Dublin Planning Commission was held on Tuesday, September 13, 2016, in the City Council Chambers located at 100 Civic Plaza. Chair Kohli called the meeting to order at 7 12:51 PM. Chair Kohli called for a recess until a quorum could be present. Once a quorum was present, Chair Kohli called the meeting back to order at 7:21:34 PM Present Chair Kohli; Commissioners Bhuthimethee and Goel; Jeff Baker, Assistant Community Development Director; Kit Faubion, Assistant City Attorney; Alex Mog, Assistant City Attorney, Robert Paley, Assistant Planner; and Debra LeClair, Recording Secretary. Absent Cm. Do; Vice Chair Mittan 2. ORAL COMMUNICATIONS — NONE 3. CONSENT CALENDAR— 3.1 Minutes of the August 23, 2016 Planning Commission Meeting. On a motion by Cm Bhuthimethee and seconded by Goel, on a vote of 3-0-0, with Cm Do and Vice Chair Mittan being absent, the Planning Commission approved the minutes of the August 23, 2016 meeting 4. WRITTEN COMMUNICATIONS — NONE 5. PUBLIC HEARINGS — 5.1 PLPA-2016-00040 Whole Foods Outdoor Display Conditional Use Permit for Outdoor Display Robert Paley, Assistant Planner, presented the project as outlined in the Staff Report Cm. Goel asked if the Conditional Use Permit (CUP) will be in effect year round or only at certain times during the year. Mr Paley answered that the outdoor display will be used for seasonal gems. Cm. Goel felt it would be similar to a Safeway display. Mr Paley answered yes. Jeff Baker, Assistant Community Development Director, responded that the permit will allow them to have displays year round. T(m.mg(nmmu.n� September 13,.;016 Rr13uLn llle.rbry 0' Fagc Cm. Goel asked if there is a trigger in place for reevaluation of the CUP Mr. Baker answered yes; Conditions of Approval #5 and #6 provides for annual review and revocation for cause Cm. Goel asked if there is a time period for the CUP before revisiting the permit. Mr Baker answered that the CUP will be in effect unless there is problem. Chair Kohli opened the public hearing and having no speakers, closed the public hearing Cm. Bhuthimethee felt that the Whole Foods Markets always have tasteful displays. On a motion by Cm. Goel and seconded by Cm. Bhuthimethee, on a vote of 3-0-2, with Cm. Do and Vice Chair Mitten being absent, the Planning Commission adopted RESOLUTION NO. 16 - 21 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN APPROVING A CONDITIONAL USE PERMIT FOR "RETAIL—OUTDOOR STORAGE" AT AN EXISTING RETAIL STORE AT 5200 DUBLIN BOULEVARD (WHOLE FOODS MARKET) 5 2 PLPA 2016-00054 Amendments to Chapters 5.58, 8.08 and 8.12 of the Dublin Municipal Code related to non-medical marijuana deliveries, businesses and cultivation, and to medical marijuana businesses Alex Mog, Assistant City Attorney, presented the project as outlined in the Staff Report. Chair Kohli asked if"local" means "city" or "county." Mr. Mog answered that it means City Chair Kohli stated that the City previously passed regulations prohibiting medical marijuana facilities He asked, if Prop 64 passes, would this ordinance allow non-medical marijuana dispensaries and related entities, but would keep the ban on medical marijuana in place Mr Mog answered yes; there are different state licenses If the City wanted to create different rules for medical and non-medical marijuana, they would have the authority to do so He added that the proposed ordinance does not create different rules, but prohibits both types of marijuana businesses Cm. Bhuthimethee felt that the City had already prohibited medical marijuana businesses in December 2015 Mr. Mog responded that the previous Ordinance prohibited deliveries and cultivation of medical marijuana. Ptanni nt/1 ommvmmn -_- September 13,]Uln 'HtAuGr ltfmond Cm. Bhuthimethee felt that the Ordinance also prohibited any commercial business. Mr Mog answered no Chair Kohli reminded the Planning Commission of their discussion regarding prohibiting deliveries and how that would affect home-bound individuals Cm Bhuthimethee asked if the language in the proposed ordinance was taken from neighboring jurisdictions' ordinances Mr Mog answered if there was any particular language that she was concerned with. Cm. Bhuthimethee stated that the proposed ordinance speaks to cities being able to create "reasonable regulations" for growing plants indoors and asked where the definition of "reasonable" came from Mr Mog responded that the initiative states that cities can adopt "reasonable regulations" and the proposed regulations are similar to what other cities have adopted. He stated that each city may have slightly different regulations, but typically follow the building/electric codes, and generally prohibit anyone from using gasses in their cultivation or using large light bulbs that could create fire danger. He felt that the proposed ordinance has fairly standard regulations. Chair Kohli asked, if Dublin allowed non-medical marijuana businesses, would the City also have control as to how the businesses are taxed and regulated. For example, if the City decides to allow non-medical marijuana businesses, can the City set the conditions/regulations and also create a City tax Mr Mog responded that a special tax on medical or non-medical marijuana businesses would need to be approved by the voters. But, the City could create the requirements that the businesses would have to comply with. Cm. Goel asked how the adjacent cities are handling this issue. Mr. Mog stated that he was unsure how adjacent cities were handling Prop 64, but in response to last year's Medical Marijuana Regulation and Safety Act (MMRSA) he understood that cities were creating similar ordinances regarding medical marijuana businesses. He stated that cities such as Berkeley, San Leandro and Oakland were being more lenient. He stated that many cities haven't adopted an ordinance yet Cm Goel felt that Mr. Mog was speaking about prohibiting medical marijuana business, but they had addressed the delivery at a meeting last December. Mr Mog responded that the delivery of medical marijuana is prohibited, which means that any businesses, located elsewhere, are not allowed to make deliveries in the City. Cm. Goel asked if it would that be illegal to make deliveries in Dublin now. Mr. Mog answered yes; a business can travel through Dublin but it is currently illegal for them to stop and make a delivery. 0fammng Cnmmmmn September 13,20!6 'Regular. fatvw u. a if Cm. Goel stated that his internet search found different information regarding these types of businesses. Mr. Mogstated that it is possible that there are businesses that are continuing to deliver. Cm. Goel asked if the previous ordinance also addressed outdoor cultivation of medical marijuana Mr. Mog answered that the previous ordinance addressed all medical marijuana growth by completely prohibiting it The proposed ordinance differentiates between cultivation of non- medical marijuana and medical marijuana because Prop 64 does He stated that the City can ban cultivation of medical marijuana but must allow some level of non-medical marijuana cultivation Cm. Goel stated that, although the Planning Commission is dealing with the Municipal Code changes now, he felt that the City could change the ordinance in the future Mr. Mog answered that the proposed ordinance will prohibit and regulate to the maximum extent possible. But the city could, in the future, allow some type of marijuana business or allow outdoor cultivation and the proposed ordinance preserves the city's power to do so. He stated that it is easier to change the ordinance in the future to allow these types of businesses rather than trying to enact a ban Chair Kohli opened the public hearing and with no speakers, closed the public hearing Chair Kohli asked if the Planning Commission has the ability to break up the ordinance and vote on each part separately He felt that the City may not want to prohibit non-medical marijuana businesses but would want to prohibit outdoor cultivation. Cm Mog answered yes, the Planning Commission can recommend that the City Council only prohibit certain parts of the marijuana issue. Chair Kohli felt that the ordinance was putting all parts of the issue together and wanted to ask the other Planning Commissioners if they had any thoughts about breaking up the ordinance for a vote. Cm. Bhuthimethee stated that her views have not changed since December but understood the reason for that ordinance. She stated that, at that time, the Planning Commission had reservations about certain parts of the ordinance. The Planning Commission felt that it was a blanket statement and too strict She wanted to leave the door open for someone who was not able to leave their home, for medical reasons, and felt that they should be able to get what they need. She felt that medical marijuana deliveries should be allowed. Chair Kohli stated that his views have not changed as well regarding the medical marijuana deliveries. He asked if the other Planning Commissioners felt strongly about different sections of the ordinance. Cm. Goel asked Chair Kohli what his thoughts were on breaking up the ordinance Chair Kohli responded that he has a different view regarding enacting a strict ordinance and then going back and making the ordinance looser. He felt that the City should not jump into an vi mmng('ommum,n September 13,JUIn '$fduLr•1(rmvd vu I v'a g ordinance because of time constraints. He stated that he has been to cities that have both non- medical and medical marijuana dispensaries and spoken to residents and has not seen anything more detrimental than a liquor store. He was concerned about outdoor cultivation and what that means. He asked if residents could grow plants on their front lawn or is outdoor cultivation different. Mr. Mog responded that outdoor cultivation is considered any part of a private residence that is not inside, which could be a front yard. He stated that the proposed ordinance does restrict outdoor cultivation of non-medical marijuana, but the City could adopt regulations for outdoor cultivation and only allow it in the backyard, for example. Chair Kohli asked if there are regulations restricting certain plants from being planted in the front yard of a private residence because they may be deemed poisonous. Mr Mog felt that individual cities may have those types of restrictions. Mr. Baker responded that the City of Dublin does not have any regulations of that type Chair Kohli felt that, if the City bans certain things from being planted on the private residence because of their nature, that could open the door for more restrictions of private property. Mr Baker stated that, if the Planning Commission wanted to recommend allowing outdoor cultivation in the back yard, but prohibit the cultivation in the front yard, that could be put into the ordinance. Chair Kohli agreed but wanted to ensure that there was a regulation restricting outdoor cultivation, such as to only in allow it in an enclosed environment that was not easily accessible to children or others He stated that he would be open to changing that part of the ordinance if the other Planning Commissioners were also in favor of changing that part Cm. Bhuthimethee agreed with Chair Kohli but was not ready to suggest any regulations for or against. She felt that the Planning Commission did not have enough information and that she has not heard from any members of the public. either for or against the issue. Chair Kohli felt that he was not ready to recommend the ordinance to the City Council and did not feel that the City should be prohibiting anything at this time He stated that, at this time, he is leaning towards voting against the recommendation. Cm Goel felt that Chair Kohli does not like the regulations being placed on non-medical marijuana but the Municipal Code currently has regulations regarding medical marijuana. He asked if Chair Kohli felt that the ordinance should be more lenient Chair Kohli stated that he would like the restrictions to be looser on everything. He stated that, if you look at the December vote, regarding the medical marijuana delivery, he voted against prohibiting that, as well as Cm. Bhuthimethee. He stated that he is against prohibiting anything at this time. He felt that, whether Prop 64 passes or not, he would rather give Dublin residents the option to do more research and offer different ways to bring this opportunity to the City rather than prohibiting everything and then having to go back and change it. He felt that, from an economic standpoint, if adjacent cities allow non-medical and medical marijuana businesses and, because Dublin hasn't allowed the marijuana business, the City may lose additional revenue opportunities. P annny/C,mmnarnn Sepiember 13,2010 Rigura.:Vxiin,1 10,) 1,/ r Cm. Bhuthimethee felt that Dublin does not need to be in the forefront of the marijuana ordinances. She felt that Dublin is a more conservative community. She stated that she voted against the ordinance in December, because she wanted to show that there was opposition. Cm. Goel felt that, if the Planning Commission recommends this ordinance to the City Council and the City Council votes on it, the public could come forward and ask the City Council to bring the item back for more discussion. He asked if the Planning Commission should act conservatively and then let the public dictate how to proceed or should they be more lenient and then have to change the ordinance. He stated that he understood Chair Kohli's comment regarding revenue for the City and being creative, but was unsure if this issue is the way to accomplish that goal Chair Kohli felt that it comes down to an individual view on the issue. He stated that there are numerous liquor stores and a store that sells firearms, and people have views for and against what is good for the City and what is not He felt that the City can tightly regulate the issue while keeping the door open by limiting the number of businesses and the area where they will be allowed, etc without shutting the door at the beginning of the discussion. He also felt that there could be residents that would come to the City Council and support the ban of non-medical marijuana businesses He felt that it depends on individual views on whether this would be a good thing for the City or harmful in the long run. He stated that there were no residents at the meeting to speak regarding the issue, either for or against, and felt that there needs to be a better understanding of the issue He agreed that approaching the issue conservatively, but if the door is shut at the beginning, there are obstacles to try to open the door. He felt that the City should wait to see if Prop 64 passes and not create an all-out ban on non-medical marijuana businesses before that time. Cm. Goel asked, if the Planning Commission does not recommend adopting the ordinance and the City Council does not adopt the ordinance but waits for the vote on the proposition, can the City Council take action after the vote. Mr. Mog answered that there is the risk that, if the City has no regulation in place before the vote, and then Prop 64 passes, someone could plant their six plants the next day, before the City Council acts on the ordinance They could then argue that they should be grandfathered in and be able to continue Chair Kohli asked, since the federal regulations still do not recognize outdoor cultivation, could the City call the FBI and put a stop to it He felt that the City is protected under the federal law Mr Mog answered that the Department of Justice has issued a guidance that states their priority for enforcement will be marijuana cultivation and delivery businesses that are not in compliance with state law Cm Bhuthimethee felt that there may be individuals that would not want to come out publicly and let their views be known on this issue and felt that most people would be more on the conservative side. Chair Kohli felt that this is a substance that could cause harm, depending on how it is used and how it affects the user He was concerned about imposing a prohibition without complete understanding of the issue. Wannuih i nniML S'en T J'epiemfirr/3.2010 Ribu(r Vet l.r;y WI i . ,, Cm. Goel asked if Chair Kohli felt that if they were lenient on the issue that the various "grow houses" that have been found in Dublin would go away Chair Kohli felt that the City could avoid some of the illegal activities by regulating the businesses and mentioned the Prohibition era. He felt that the ordinance was too much of a blanket prohibition and stated that he would vote no on recommending this ordinance to the City Council. Cm Bhuthimethee felt that, out of necessity, the Planning Commission needs to recommend the ordinance to the City Council because she was not ready to propose anything different at this time. She commended Staff for bringing this issue to the Planning Commission's attention so that the City can be prepared before the November vote. She felt that, from the polling that she has seen, Prop 64 has a good chance of passing and the City should be ready with an ordinance. Cm Bhuthimethee made a motion to adopt a resolution recommending that the City Council adopt an Ordinance amending Chapters 5.58, 8 08 and 8.12 of the Dublin Municipal Code. Having no second to the motion, the motion failed, and there was a discussion regarding how to proceed Kit Faubion, Assistant City Attorney, stated that the Planning Commission could let the motion die for failure to have a second Chair Kohli asked if the motion dies, can the Planning Commission continue their discussion Ms. Faubion stated that an affirmative recommendation, whatever it is, requires three votes and the other recommendation could move forward on a lesser vote; perhaps this motion didn't have the second but felt that there could be another motion that might garner the three votes for an affirmative recommendation There was a discussion regarding how to vote on the ordinance and if the Planning Commission wanted to not recommend the ordinance to the City Council but recommend a study of adjacent cities with the pros and cons of having this type of business in their community, as well as economic considerations. They also discussed continuing the item in order to gather more information and to have a discussion with the full Planning Commission before making a recommendation to the City Council Mr. Baker stated that one of the roles of the Planning Commission is to make recommendations to the City Council in order to help them make a decision. He felt that the Planning Commission has raised some valid and thoughtful issues. He mentioned that the Planning Commission could continue the item for further study, and the other option would be to express their reservations about the item and recommend that the City Council study the issue before making a decision. This would allow the City Council, as the decision makers, to decide whether they think it is important to have an ordinance in place before the law becomes effective; or the City Council could direct Staff to complete additional studies The City Council could then direct those studies to be done and remand the item back to the Planning Commission, that way the City Council can decide if they want to hold the item for more study or they want to have an ordinance in place and do the study later Cm. Goel mentioned an item that was continued previously and the outcome was a better project Y(du;rry; c 7,3, 'urn D'cptenrfin t;2013, `Ktg.:ldr tta.t p rdJ ^ 1 J Chair Kohli felt that Mr Baker made some good points but the strongest recommendation is an official vote He felt that it would be better to bring the item back to the Planning Commission in order to have a full discussion of the issue Cm. Bhuthimethee stated that the item that was continued previously was a project brought forward by a developer who was footing the bill for staffs time She added that this is the City's item which means the City foots the bill for a continuation. Mr. Baker answered yes, this is a City of Dublin ordinance Cm Bhuthimethee felt the ordinance was sufficient to recommend adoption to the City Council. There was a continued discussion regarding how to move forward with the ordinance The Planning Commission's issues regarding recommending this Ordinance to the City Council are as follows: • Chair Kohli felt that the Ordinance was too restrictive and could cause the City to lose out on needed revenue. He also wanted to have more information regarding adjacent cities and how they are dealing with Prop 64 • Cm Bhuthimethee was in favor of the Ordinance but would also like more information regarding adjacent cities and how they are dealing with Prop 64. • Cm Goel was in favor of more public input and a study of adjacent cities' ordinances before acting on the ordinance. Mr. Baker stated that, if there is a desire by the City Council to have an Ordinance in place by the time Prop 64 either passes or not, the vote must take place this evening in order for the Ordinance to take effect before the election. He felt that the Planning Commission has concerns about how the Ordinance is written. He stated that, one way to let the City Council know their issues would be to have a "no recommendation" which is an affirmative recommendation but a stance taken and then list the reasons why. The City Council would then have that information when they make their decision. Cm Goel asked why it took Staff so long to bring this item to the Planning Commission if Staff knew about it earlier, thus creating an urgency to move on the item. Mr. Baker answered that Prop 64 has not passed yet; therefore, we do not know if the law will become effective. He stated that the City is moving forward proactively in making some recommendations. He stated that the Ordinance is written as a restrictive Ordinance to secure the City's rights to regulate. If Prop 64 passes, the City Council could direct Staff to do a thoughtful analysis which would include community outreach, studies and all the things the Planning Commission was concerned with which are all part of creating an ordinance that affects a lot of people. He felt that there is not enough time for that to happen before the election He stated that this Ordinance would secure the right that nothing happens until a thoughtful analysis has been completed. Cm Goel asked if one of the recommendations could be an approval pending the results of further study within a certain amount of time after the passing of Prop 64 nnrylr ..: +uw i_ CO ember 11, 201(, Yf zurlr Mr. Baker stated yes. Cm. Goel stated that he would like the three commissioners present to vote in the affirmative, understanding that the issue will be revisited based on the Planning Commission's recommendation He felt that the City Council could say that they accept the Planning Commission's recommendation and take action, but not bring it back to the Planning Commission until they deem it necessary He felt that would make it clear that the Planning Commission is not comfortable taking action, but doing so out of respect to move forward with the Ordinance. Chair Kohli did not agree and felt that the City does not need to put these measures in place at this time He felt that the Planning Commission should not be rushed to a decision and that the City does not need to put the Ordinance in place before Prop 64 is voted in. He felt that the City has time to understand how the issue will evolve, but by passing the Ordinance as is, the Planning Commission is basically "rubber stamping" this Ordinance and telling the City Council to put the "prohibition" in place Cm. Bhuthimethee was concerned that, if Prop 64 passes, the next day some people might plant their six plants and then, if the City decides to change the ordinance to make it more lenient, then there is a problem. She felt that it would be difficult for the City to deal with that issue Basically saying that these people are allowed to keep their six plants but everyone else missed their window and are not allowed Chair Kohli agreed but felt that the City is being a bit paranoid about the issue and did not feel that there will be a lot of people planting their six plants the day after Prop 64 passes. He felt that if the voters of California are going to pass Prop 64, and if it passes with an overwhelming majority, why should Dublin ignore the majority and prohibit non-medical marijuana businesses from our City. Cm. Bhuthimethee stated that the Ordinance allows the six plants to be grown inside a residence. Chair Kohli responded that if the City passes this Ordinance they will not be allowed to plant outdoors Cm. Bhuthimethee asked if he was referring to commercial cultivation, because people could plant their six plants indoors Chair Kohli responded that, if the Ordinance passes, no one will be allowed to cultivate outdoors He felt that Cm Bhuthimethee was concerned that if Prop 64 passes people will begin to plant the next day and the City Council could control that by adopting this Ordinance. Cm Bhuthimethee asked if Chair Kohli wanted to allow outdoor cultivation. Chair Kohli stated that he was concerned about outdoor cultivation and the safety of having it growing in front yards He felt that, fundamentally, the City should not prohibit non-medical marijuana businesses yet. He felt that there could be ways to regulate outdoor cultivation in the future, rather than prohibiting it now and then having to repeal the prohibition. He felt that the City should wait to see what happens with Prop 64. He felt that they were viewing the issue Seplrmlicr 1 i, 2011, .ryy,:.Ln!V xh.rj v+ i l'agr from both sides and each have sound arguments but felt that the issue will not be resolved tonight Mr Baker felt that the Planning Commission does not have a consensus on a recommendation and that should be relayed to the City Council through the minutes and through a resolution which would state that this is a complicated issue and the Planning Commission is not able to recommend adoption without more information. Chair Kohli stated that he is in favor of continuing the item Cm Bhuthimethee stated that she is comfortable with a vote to show where the Planning Commission stands which would be "no recommendation " Ms. Faubion stated that the Planning Commission requires three votes for an affirmative vote on the Ordinance If the Planning Commission wants to send a "no recommendation" with a list of the issues, that would move forward with a 2-1 vote. Cm Goel stated that he would be in favor of making a recommendation to the City Council of "no recommendation " He felt that he needed more information in order to make an affirmative recommendation. On a motion by Cm. Goel and seconded by Cm. Bhuthimethee, on a vote of 2-1-2, with Cm. Do and Cm. Mittan being absent, to make a recommendation to the City Council of "no recommendation," due to the lack of a consensus among the Planning Commission, with reference to the minutes to summarize the important issues related to the Ordinance, the Planning Commission adopted: RESOLUTION 16-22 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING "NO RECOMMENDATION" TO THE CITY COUNCIL REGARDING THE ADOPTION OF AN ORDINANCE AMENDING CHAPTERS 5.58, 8.08 AND 8.12 OF THE DUBLIN MUNICIPAL CODE RELATING TO NON-MEDICAL MARIJUANA DELIVERIES, BUSINESSES AND CULTIVATION AND TO MEDICAL MARIJUANA BUSINESSES 6. UNFINISHED BUSINESS — NONE 7. NEW BUSINESS - NONE 8. OTHER BUSINESS — 8 1 Mr. Baker mentioned that the current appointments to the Planning Commission of Cm. Do, Chair Kohli and Cm Goel will expire at the end of this year. He stated that the City Clerk will be sending out information soon and, if they are interested in being on the Planning Commission again, they will need to apply. The 34mmnp)Co n,%.0 rrn Jcptember 13,2(In NcguLrr IIrehnJ „1e P a ,1 ' application period is October 24`" through November 18`" and the Mayor will then make recommendations at the December 20th City Council meeting 8 2 Mr. Baker stated that the next Planning Commission meeting will be October 11`" 9. ADJOURNMENT—The meeting was adjourned at 8:42 40 PM Respectfully submitted, e< Cl Planning Commission Chair ATTEST: Jeff Baker Assistant Community Development Director G LMINUTES120161PLANNING COMMISSIOM09 13 16 FINAL PC MINUTES(CF)docx PGnmryf Coma. r n 1fPtem6er I3 NIM 'Xyula llM i n,1 Ilm I'a N .