The Purpose of Regulations and City Codes

In an earlier article, I talked about a city planning meeting that centered around a cannabis dispensary permit. The permit had been previously granted, but there was an appeal to that approval that was being discussed. In this article, we pick up where the last meeting ended.

Reviewing the Case

The previously missing commissioner was asked if he had an opportunity to review the last meeting, and after receiving an affirmative answer, a staff member summarized the issue. This included a conclusion that the motion to stop the approval of the conditional use permit (CUP) did not meet the required criteria necessary for an appeal, and that the project is consistent with all land use regulations.

After the previous meeting, staff took time to conduct a further analysis (beyond what was done during the break). After doing so, they retained the opinion that a cemetery is not a city park from which a 1000-foot separation distance must be kept. They did however acknowledge an error in the Master Plan where the cemetery was mislabeled as the wrong type of park. In order to qualify, the cemetery must be a “resource-based park” with “areas of habitat and resource protection, with compatible recreation”. Other cemeteries in the City are not labeled a “resource-based park” and thus this particular one should not be considered such either.

The City then raised the possibility that the appeal may have merit until the mapping error is corrected, but then recited the earlier argument that the actual walking distance between the two sites is approximately 1600 feet. The distance is only under 1000 feet as the crow flies. As a result, the staff recommended that the planning commission deny the appeal, which would mean allowing the dispensary to proceed with operations.

Taking a Vote

No additional public comments were permitted this time around, though commissioners were given the opportunity to vote again allowing for the possibility that some may change their minds. It was also stated that with all commissioners now present, that should an agreement not be reached today, then as per regulations, the appeal would be denied.

More than one commissioner stated that while they have safety and well-being concerns as they relate to the public that cause them to personally not be in favor of the dispensary, that acting in accordance with the regulations, they must deny the appeal, as the dispensary has done everything asked of them in order to obtain the CUP. Still others insisted that the public safety and well-being of a particular community should supersede distance requirements and other such legalistic regulations.

In the end, the previously absent commissioner voted for the appeal. This would seem to suggest that the appeal would be approved and the CUP denied. However, between the two meetings a different commissioner changed their vote from being for the appeal to being against the appeal, such that the final vote was four against the appeal and three in favor of the appeal. The appeal was denied and the dispensary retained its permit.

Interestingly, and perhaps just to make things a bit more complicated, the chairman then raised a new motion to vote to support the appeal on the basis of “public safety, health, and welfare” citing as an example that the dispensary would be located near an addiction treatment provider’s office. Voting on this basis then commenced, leading to another 4-3 vote, however this one was in favor of the appeal.

At this point a member of the public jumped in asking for clarification to which the chairman indicated that the appeal was approved. Apparently, while the appeal was not approved on the initial regulations-based grounds, it was approved when looked at strictly on the basis of a public health and safety standpoint.

Conclusion

I wouldn’t be surprised if this issue somehow found a way to continue, but in the meantime I’m left wondering about the current decision. In Part I of this article, I offered the suggestion that in the end it’s the regulations that matter most. Again, more than one commissioner as well as the City Attorney even emphasized this point. But, in this particular case an appeal was upheld not on the basis of regulations, but rather on the views and concerns of the commissioners.

With that, I suppose that it’s fair to say that the path of least resistance is to make your case (whatever it may be) based upon the precise regulations of a city, but that there is still a place for an impassioned argument rooted in safety, health, and welfare of the general public, which is after all is supposed to be the basis of all codes and public regulations.