Council to hear appeal of cannabis dispensary permit

| September 19, 2018 | 0 Comments

Martinez City Council will hear an appeal tonight of the Planning Commission’s approval of a conditional use permit for a medicinal marijuana dispensary in a suite at 4808 Sunrise Drive.

After several Planning Commission meetings to determine whether a gym that’s a tenant in the building has enough young clientele to be called as a “youth center,” that panel approved the conditional use permit July 3 and urged the Council to adopt an ordinance approving a development agreement with the applicant.

Since then, Berding & Weill, a law firm representing the gym, , Power Endurance Training Center, appealed the Commission’s actions to the Council, saying its client is indeed a youth center under California code, according to a report by Contract Planner Brian Millar and Community and Economic Development Director Christina Ratcliffe.

The firm has provided additional information about the number and age of its clients the company did not give to the Planning Commission, the report said.

California code requires a 600-foot buffer between cannabis businesses and youth centers.

The applicant, Firefly Health Corporation, is the only company to have submitted its application before the city imposed a moratorium on commercial cannabis operations.

Originally, city staff had recommended the Commission approve the application during its May 8 meeting. However, speakers raised the concern about having a dispensary a wall away from the gym. They cited public safety, limits to parking and impacts to the surrounding neighborhood as well as the type of clients and youth activities at the gym, according to the report.

Until that meeting, city employees said they had thought the gym primarily catered to adults. When those concerns were raised, staff advised the Commission to continue the hearing to allow time to research the matter. The hearing was rescheduled.

In response to the city’s questions, Power Endurance said 95 percent of its clients were minors, which would qualify the gym as a youth center as defined by law. City employees also asked for an accurate count of minors using the gym, to help the Commission reach a conclusion about the application.

At the July 30 meeting, the Commission unanimously approved the application after hearing from 23 speakers, some of whom spoke of the need for a medicinal dispensary and others who opposed putting the dispensary next to the gym or the nearby residential neighborhood, the report said.

The panel also heard from the applicant about its proposed use and plans for the dispensary. Additional information about parking indicated off-street spaces were adequate for all the building’s tenants.

Berding & Weill filed the appeal Aug. 7, saying as a youth gym, Power Endurance (PE) qualifies as a “youth center” under California law. In another letter sent Aug. 31, the attorney firm said 66 percent of the gym’s clients are minors, based on numbers gathered from Aug. 6 to Aug. 28 that showed that 291 of 440 client at the gym between those dates were minors.

The letter said, “[W]e believe the true average percentile of minor athletes…at Power Endurance during the year is likely closer to 75 percent.”

In addition, the letter said the dispensary would adversely impact the gym’s business if parents are no longer comfortable having their children at a place so close to a dispensary, and that Firefly should be required to have a 600-foot buffer between its dispensary and a youth center.

Joshua Glaser, representing the building’s owner, Glaser Family Trust, wrote Sept. 4 that the owners of Power Endurance had not told their landlord they were opening anything that could be described as a  “youth center,” “a youth training facility” or “youth gym,” the report said.

In addition, he wrote that Power Endurance staff had shown past support for Firefly moving forward with its dispensary, and that the Glaser Family Trust had approved Firefly’s tenancy after negotiating a gated entry be installed at the Firefly space, and that it should be moved from the Power Endurance entry. Glaser is contending the gym’s owner has reneged on the agreement.

In a Sept. 7 letter, Firefly’s attorney, Jason Molinelli, of the legal firm of Archer Norris, argued that Power Endurance doesn’t qualify as a youth center and that the dispensary can coexist with the gym,

“There are essentially two key provisions for Council consideration,” the pair wrote in the report. One is the definition of a youth center, and the other is determination of the size of buffer between a cannabis operation, which Martinez can modify from the state’s 600-foot limit.

California’s Health and Safety Code defines a youth center as a “public or private facility” that primarily is used for recreational or social activities for minors. It can be a private youth membership organization or club, a social service teen club, or a similar amusement park, the pair wrote in their report to the Council.

However, the state code doesn’t give much guidance to local jurisdictions about how to interpret that language, they wrote. “Ultimately, the City Council will have the opportunity and authority to define a youth center as part of the cannabis ordinance.”

That would include defining “youth center” and setting its criteria and parameters as well as deciding which – or whether – land uses are to be considered youth centers in the city’s own cannabis ordinance, Millar and Ratcliffe wrote.

But in the case of the Firefly application, they noted, the dispensary would be separated from the gym only by a wall, “effectively having no separation buffer.” So the dispensary could be approved only if the Council, determines that the gym isn’t a youth center or if it eliminates the 600-foot buffer requirement, and staff isn’t recommending the latter.

In analyzing the letters, the report noted the new numbers from the gym were for three weeks in August. “To staff, the evidence as to whether PE is a youth center is somewhat ambiguous,” the authors wrote.

The Council must make findings either to support or deny the use permit, which for a cannabis dispensary does not run with the land, and do the same for the development agreement, which requires Firefly to make provisions for security, audits and fee payments.

The development agreement must be consistent with the city’s General Plan and comply with zoning regulations, they wrote. Approval of the development agreement is by ordinance.

Millar and Ratcliffe have suggested the Council has three options: Overturning the Planning Commission’s decision favoring the dispensary application, denying Power Endurance’s appeal or continuing the hearing to allow time for further research.

Copies of documents associated with this appeal are available at the City Clerk’s office, Martinez City Hall, 525 Henrietta St.; at the Martinez Library, 740 Court St.; or online at may also be viewed on the City’s website: http://www.cityofmartinez.org/gov/meetings.asp.

The Council will consider naming a park at the intersection of Alhambra and Marina Vista avenues after the late John Sparacino, who was Martinez’s mayor. Councilmember Debbie McKillop originally suggested the designation, based on Sparacino’s involvement in numerous civic and community groups.

Cost to erect a sign marking the designation is about $2,500, available in the Public Works Maintenance budget, according to Public Works Director Dave Scola’s report.

The Parks, Recreation, Marina and Cultural Commission was asked to weigh in, Scola wrote. The panel recommended developing and adopting a naming process. Although it acknowledged Sparacino’s contribution to the city, the Commission considered other naming options Aug. 21 and said the city would benefit with a policy that outlined criteria and established a process for naming city parks and other municipal landmarks.

In other items on tonight’s agenda, the Council will consider amending its consultant contract with Carollo Engineers for$65,904 in additional design and bid services for the Webster Drive Pump Station Improvement Project to accommodate additional costs that were unexpected.

It will vote on allocating $30,000 in Measure J money to reimburse the East Bay Regional Park District for repair work on the northern 400 feet of the Radke Martinez Regional Shoreline Park Trail that parallels North Court Street. That part of the trail is on city land.

Contra Costa County Animal Services will give a presentation tonight as well.

The City Council meeting will start at 7 p.m. today in the Council Chamber of Martinez City Hall, 525 Henrietta St.

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