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HomeMy WebLinkAboutOrdinance No. 3088-2019_____________________________________________________________________________________ New Text Underlined; [DELETED TEXT BRACKETED] Sponsored by: Administration CITY OF KENAI ORDINANCE NO. 3088-2019 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA AMENDING KENAI MUNICIPAL CODE 14.20.330 - STANDARDS FOR COMMERCIAL MARIJUANA ESTABLISHMENTS, TO INCORPORATE LIMITATIONS ON HOURS OF OPERATION FOR RETAIL MARIJUANA ESTABLISHMENTS. WHEREAS, on November 4, 2014, the Alaskan voters passed Ballot Measure 2, an Act to Tax and Regulate the Production, Sale and Use of Marijuana; and, WHEREAS, the City, can enact ordinances regulating commercial marijuana establishments in the city; and, WHEREAS, on January 20, 2016, the City of Kenai enacted regulations governing commercial marijuana establishments in the City, which did not include a local regulation on operating hours for retail marijuana stores; and, WHEREAS, retail marijuana stores are limited in their hours of operation by State Regulation 3 ACC 306.310 which requires the businesses to be closed between the hours of 5:00 a.m. and 8:00 a.m.; and, WHEREAS, there is a need to further regulate hours of operation for retail marijuana stores in the City to reduce negative impacts on residential neighborhoods and protect public health and safety; and, WHEREAS, the proposed closure between 2:00 a.m. and 8:00 a.m. daily for retail marijuana stores within the City is no more restrictive than the regulations of adjacent jurisdictions and would match the regulations of hours of operation for retail marijuana stores within the Kenai Peninsula Borough under Kenai Peninsula Borough Code Section 7.30.020(C)(2) – Assembly Review- Standards; and, WHEREAS, during a public hearing at a regular meeting on August 14, 2019 the City of the Kenai Planning and Zoning Commission recommended the Kenai City Council enact a change to Kenai Municipal Code that would prohibit retail marijuana stores from operating between the hours of 2:00 a.m. and 8 a.m. daily. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, as follows: Section 1. Amendment of Section of the Kenai Municipal Code: That Kenai Municipal Code, Section 14.20.330 – Standards for Commercial Marijuana Establishments, is hereby amended as follows: Ordinance No. 3088-2019 Page 2 of 3 _____________________________________________________________________________________ New Text Underlined; [DELETED TEXT BRACKETED] 14.20.330 Standards for commercial marijuana establishments. The purpose of this section is to establish general standards for commercial marijuana establishments. (a) Commercial marijuana establishments may be permitted or allowed with a conditional use permit under KMC 14.20.150, as provided in the City of Kenai’s land use table, KMC 14.22.010, and the provisions of this section. (b) Applicants applying for a conditional use permit must include an area map drawn to scale indicating all land uses on other properties within a five hundred (500) foot proximity of the lot upon which the applicant is seeking a conditional use permit. This shall be in addition to the conditional use permit submission requirements in KMC 14.20.150. (c) A public hearing shall be scheduled before the Planning and Zoning Commission to review the conditional use permit application once it has been deemed complete. The public hearing shall be scheduled in accordance with the requirements in KMC 14.20.280, except that notification shall be mailed to all real property owners on record on the Borough Assessor’s records within a five hundred (500) foot periphery of the parcel affected by the proposed action. (d) The preparation, packaging, manufacturing, processing, and storing of all marijuana, marijuana concentrate or marijuana products must be conducted within a fully enclosed, secure indoor facility. The growing and cultivating of marijuana must be conducted within a fully enclosed, secure indoor facility or greenhouse with view-obscuring rigid walls, a roof and doors, unless a nonrigid greenhouse, or other structure, is specifically approved, in which case the cultivation must be enclosed by a sight-obscuring wall or fence at least six (6) feet high. (e) All commercial marijuana establishments shall not emit an odor that is detectable by the public from outside the commercial marijuana establishment. (f) No portion of a parcel upon which any commercial marijuana establishment is located shall be permitted within the following buffer distances: (1) One thousand (1,000) feet of any primary and secondary schools (K- 12) and five hundred (500) feet of any vocational programs, post-secondary schools, including but not limited to trade, technical, or vocational schools, colleges and universities, recreation or youth centers, correctional facilities, churches, and state licensed substance abuse treatment facilities providing substance abuse treatment; and (2) Buffer distances shall be measured as the closest distance from the perimeter of a stand-alone commercial marijuana establishment structure to the outer boundaries of the school, recreation or youth center, or the main public entrance of a church, correctional facility, or a substance abuse treatment facility providing substance abuse treatment. If the commercial marijuana establishment occupies only a portion of a structure, buffer distances are measured as the closest distance from the perimeter of the closest interior wall segregating the commercial marijuana establishment Ordinance No. 3088-2019 Page 3 of 3 from other uses, or available uses in the structure, or an exterior wall if closer, to the outer boundaries of the school, recreation or youth center, or the main public entrance of a church or correctional facility, or a substance abuse treatment facility providing substance abuse treatment. (g) As provided in the Land Use Table, a person or licensee may apply for a conditional use permit to allow for a marijuana cultivation facility, standard, on lots of forty thousand (40,000) square feet or greater in size, and a marijuana cultivation facility, limited, on any size lot. (h) A marijuana cultivation facility, standard, or a marijuana cultivation facility, limited, shall only be allowed on a lot which has an existing structure consistent with a principal permitted use. (i) A marijuana cultivation facility located in an accessory building shall be subject to the setback provisions in KMC 14.24.020, Development Requirements Table. A person or licensee seeking relief from the provisions in the Development Requirements Table may apply for a variance subject to the provisions of KMC 14.20.180. (j) No retail marijuana store may conduct business on, or allow any customer or consumer to access, the licensed premises between the hours of 5:00 a.m . and 8:00 a.m. daily. Section 2. Severability: That if any part or provision of this ordinance or application thereof to any person or circumstances is adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in all controversy in which this judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application . Section 3. Effective Date: That pursuant to KMC 1.15 .0?0(f), this ordinance shall take effect 30 days after enactment. ENACTED BY THE COUNCIL OF THE CITY OF KENAI , ALASKA, this 2nd day of October, 2019 . BRIAN GABRIEL SR., MAYOR Introduced: September 18, 2019 Enacted : October 2, 2019 Effective : November 1, 2019 New Text Underlined; [DE LE TED TEXT BRACKETED) MEMORANDUM TO: Mayor Brian Gabriel and Kenai City Council THROUGH: Paul Ostrander, City Manager FROM: Elizabeth Appleby, City Planner DATE: September 9, 2019 SUBJECT: Ordinance No. 3088 – 2019 – Amending Kenai Municipal Code Section – Standards for Commercial Marijuana Establishments to Incorporate Hours of Operation Requiring a Closure Between 2:00a.m. and 8:00a.m. Daily ____________________________________________________________________________ The City of Kenai Planning and Zoning Commission acts in an advisory capacity to the Kenai City Council on the City of Kenai Zoning Code as specified in Kenai Municipal Code 14.05.010 Duties and Powers. As such, the Planning and Zoning Commission approved Resolution PZ2019-29 recommending the Council of the City of Kenai amend Kenai Municipal Code to incorporate hours of operation for retail marijuana stores. The Planning and Zoning Commission recommended requiring closure between the hours of 2:00 a.m. and 8:00 a.m. daily. The proposed closure for retail marijuana stores between 2:00 a.m. and 8:00 a.m. would match regulations for hours of operation within the Kenai Peninsula Borough under Kenai Peninsula Borough Code Section 7.30.020(C)(2) and would not be any more restrictive than other neighboring jurisdictions. The City of Kenai currently has no local regulation for hours of operation of retail marijuana stores. State of Alaska regulation 3 AAC 306.310-Acts prohibited at retail marijuana store, states, “A licensed retail marijuana store may not (1) conduct business on or allow a consumer to access the retail marijuana store's licensed premises between the hours of 5:00 a.m. and 8:00 a.m. each day”. There are currently no additional limitations on hours of operation in any of the conditional use permits granted to retail marijuana stores within the City of Kenai. The proposed Code change would allow the City of Kenai to customize marijuana retail store hours to meet the needs of our community as allowed under State law regarding marijuana. It would not provide an unreasonable restriction on commerce within the City and may have public safety and quality of life benefits to prevent late-night driving and reduce late-night lighting. Page 2 of 2 Ordinance No. 3088-2019 Please reference the attached Resolution PZ2019-29 and associated staff report presented to the Planning and Zoning Commission. I have also included a written comment received from a resident requesting a closure time of midnight instead of 2:00 a.m. with concerns for late night drivers and headlights as well as a comment recorded in the notes of the Planning and Zoning Commission public hearing for PZ2019-29 from a retail marijuana store owner who opposed the hours restriction because it removed flexibility to stay open longer during times of high volume, such as during the dipnet fishery. Thank you for your consideration. STAFF REPORT To: Planning & Zoning Commission From: Elizabeth Appleby, City Planner Date: August 1, 2019 Subject: Resolution PZ2019-29 - Recommending the Council of the City of Kenai Amend Kenai Municipal Code 14.20.330 - Standards for Commercial Marijuana Establishments, to Incorporate Hours of Operation for Retail Marijuana Establishments into the City of Kenai’s Code of Ordinances. GENERAL INFORMATION The City of Kenai Planning and Zoning Commission acts in an advisory capacity to the Kenai City Council on the City of Kenai Zoning Code as specified in KMC 14.05.010 Duties and powers under Title 14 Planning and Zoning Commission. As requested by the Planning and Zoning Commission, City Staff is providing background information and a recommendation with Resolution PZ2019-29 for a change to Kenai Municipal Code that would restrict the operating hours of retail marijuana stores within the City of Kenai. Alaska State Statutes prohibit consumers to access a retail marijuana store’s premises or for business to be conducted between the hours of 5:00 a.m. and 8:00 a.m. each day. Those hours are the current limitation in the City of Kenai on hours of operation for retail marijuana stores. None of the conditional use permits within the City for retail marijuana stores have a condition for a specific hours of operation limitation as part of a conditional use permit. Local governments may enact more stringent regulations on hours of operation than those set by the State of Alaska. City staff recommends prohibiting retail marijuana store sales between the hours of 2:00 a.m. and 8:00 a.m. within the City of Kenai. Public Notice, Public Comment Pursuant to KMC 14.20.280, Public hearing and notifications, City staff published notice of the Planning and Zoning Commission public hearing in the Peninsula Clarion and posted notice in three public places. No public comments have been submitted to the City of Kenai as of August 1, 2019. PZ2019-29 Staff Report Page 2 Recommending Amend Kenai Municipal Code – Retail Marijuana Operating Hours ANALYSIS The following is a selection of retail marijuana store hour limitations for other jurisdictions in Alaska to provide comparative information: • Kenai Peninsula Borough – may not operate between 2:00 a.m. and 8:00 a.m. daily • City of Soldotna – may not operate between 12:00 a.m. and 8:00 a.m. daily • City of Seward – may not operate between 2:00 a.m. and 10:00 a.m. daily • Municipality of Anchorage – may not operate between 12:00 a.m. and 8:00 a.m. daily There are currently four permitted retail marijuana stores in the City of Kenai and one pending conditional use permit application that would allow for a fifth retail marijuana store within the City of Kenai. All owners of these stores were contacted by the City Planner to obtain informal feedback on potential hours of operation restrictions via a phone conversation. All retail marijuana store owners voiced support for required retail marijuana store closures between 2:00 a.m. and 8:00 a.m. Most owners said they would also not object to a 1:00 a.m. closure and one store owner would support a midnight closure time. Two owners requested to open earlier than 8:00 a.m., particularly to serve customers fishing early in the morning in summer. State laws, however, prohibit an opening time before 8:00 a.m. RECOMMENDATIONS City staff recommends the Planning and Zoning Commission advise the Kenai City Council to amend Kenai Municipal Code to prohibit retail marijuana stores from operating between 2:00 a.m. and 8:00 a.m. daily through Resolution PZ2019-29. This would not be any more restrictive than neighboring jurisdictions and would not limit the potential commercial activity of retail marijuana store businesses within the City of Kenai. This change to City Code may provide public safety benefits, particularly to discourage late night driving to or from retail marijuana stores within the City. ATTACHMENTS A. Resolution No. PZ2019-29 the "1>' of, KENAI, ALASKA "V' CITY OF KENAI PLANNING AND ZONING COMMISSION RESOLUTION NO. PZ2019 -29 A RESOLUTION OF THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI RECOMMENDING THE COUNCIL OF THE CITY OF KENAI AMEND KENAI MUNICIPAL CODE , 14.20 .330 -STANDARDS FOR COMMERCIAL MARIJUANA ESTABLISH MENTS , TO INCORPORATE HOURS OF OPERATION FOR RETAIL MARIJUANA ESTABLISH MENTS INTO THE CITY OF KENAl'S CODE OF ORDINANCES. WHEREAS, Kenai Municipal Code 14.05.010 states the City of Kena i Planning and Zoning Commission will act in an advisory capacity to the Kenai City Council regarding the Kenai Zon ing Code; and , WHEREAS, on November 4, 2014, the Alaskan voters passed Ballot Measure 2, an Act to Tax and Regulate the Production, Sale and Use of Marijuana and Marijuana Local Option Laws are found in Title 17 .38 of Alaska Statutes and Title 3 of the Alaska Administrative Code ; and , WHEREAS, on January 20, 2016 the City of Kenai enacted regulations governing commercial marijuana establishments in the City; and, WHEREAS , the hours of operation limitations on reta il marijuana stores would not unreasonably limit the potential commercial activity of retail marijuana store businesses within the City of Kena i and are not any more restrictive than those of adjacent jurisdict ions; and, WHEREAS, setting a standard limitation on hours of operation for all re tai l marijuana stores in the City will ensure the bus inesses are compatible with surrounding uses ; and , WHEREAS , setting the hours of closure between 2:00 a.m. and 8:00 a.m. is co nsi ste nt with Kenai Peninsula Borough Ordinances ; and, WHEREAS , the City of Kenai Planning and Zoning Commission cond ucted a duly ad vertised public hearing regarding Resolution PZ2019-29 on August 14, 2019. NOW, THEREFORE , BE IT RECOMMENDED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI , ALASKA: Section 1. That the Kenai City Council amend Kenai Municipal Code 14.20.330 -Standards for Commercial Marijuana Establishments, to incorporate hours of operation for retail marijuana stores through a public hearing process as follows : 14.20.330 Standards for commercial marijuana establishments. The purpose of this section is to establish general standards for commercial marijuana establishments . Resolution No. PZ2019-29 Page 2 of 3 (a) Commercial marijuana establishments may be permitted or allowed with a conditional use permit under KMC 14 .20.150, as provided in the City of Kenai's land use table , KMC 14 .22 .010, and the provisions of this section . {b) Applicants applying for a conditional use permit must include an area map drawn to scale indicating all land uses on other properties within a five hundred (500) foot proximity of the lot upon which the applicant is seeking a conditional use permit. This shall be in addition to the conditional use permit submission requirements in KMC 14.20.150 . (c) A public hearing shall be scheduled before the Planning and Zoning Commission to review the conditional use permit application once it has been deemed complete . The public hearing shall be scheduled in accordance with the requirements in KMC 14 .20 .280, except that notification shall be mailed to all real property owners on record on the Borough Assessor's records within a five hundred (500) foot periphery of the parcel affected by the proposed action. (d) The preparation, packaging, manufacturing, processing, and storing of all marijuana, marijuana concentrate or marijuana products must be conducted within a fully enclosed, secure indoor facility . The growing and cultivating of marijuana must be conducted within a fully enclosed, secure indoor facility or greenhouse with view-obscuring rigid walls, a roof and doors, unless a nonrigid greenhouse, or other structure, is specifically approved, in which case the cultivation must be enclosed by a sight-obscuring wall or fence at least six (6) feet high . (e) All commercial marijuana establishments shall not emit an odor that is detectable by the public from outside the commercial marijuana establishment. (f) No portion of a parcel upon which any commercial marijuana establishment is located shall be permitted within the following buffer distances: (1) One thousand (1 ,000) feet of any primary and secondary schools (K- 12) and five hundred (500) feet of any vocational programs, post-secondary schools , including but not limited to trade, technical, or vocational schools, colleges and universities, recreation or youth centers, correctional facilities, churches , and state licensed substance abuse treatment facilities providing substance abuse treatment; and (2) Buffer distances shall be measured as the closest distance from the perimeter of a stand-alone commercial marijuana establishment structure to the outer boundaries of the school, recreation or youth center, or the main public entrance of a church, correctional facility, or a substance abuse treatment facility providing substance abuse treatment. If the commercial marijuana establishment occupies only a portion of a structure, buffer distances are measured as the closest distance from the perimeter of the closest interior wall segregating the commercial marijuana establishment from other uses, or available uses in the structure, or an exterior wall if closer, to the outer boundaries of the school, recreation or youth center, or the main public entrance of a church or correctional facility, or a substance abuse treatment facility providing substance abuse treatment. Reso lution No. PZ2019-29 Page 3 of 3 (g) As provided in the Land Use Table, a person or licensee may apply fo r a conditional use permit to allow for a marijuana cultivation facility, standard , on lots of forty thousand (40,000) square feet or greater in size, and a marijuana cultivation facility, limited, on any size lot. (h) A marijuana cultivation facility, standard, or a marijuana cult ivation facility , limited, shall only be allowed on a lot which has an existing structure cons istent with a principal permitted use . (i) A marijuana cultivation facility located in an accessory bui lding shall be subject to the setback provisions in KMC 14.24.020, Development Requirements Table . A person or licensee seeking relief from the provis ions in the Development Requirements Table may apply for a variance subject to the provisions of KMC 14.20.180 . (j) No retail marijuana store may conduct business on, or allow any customer or consumer to access. the licensed premises between the hours of 2:00 a .m. and 8:00 a.m. each day. Section 2. That a copy of Resolution PZ2019-29 be forwarded to the Kenai City Council. PASSED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI , ALASKA , th is 14th day of August, 2019 . AIT, CHAIRPERSON ATTEST: ___________________________________________________________________________________ Planning and Zoning Commission Meeting Page 4 of 7 August 14, 2019 There being no one else wishing to be heard, public comment was closed. Clarification was provided that in 2017, it was found that the main entrance door to be 504-feet from the marijuana establishment using GIS Software and a survey showed 516-feet from proposed establishment to the main, covered entrance of the church. The applicant noted the double glass doors would be the main entrance to the Marijuana Retail Store; the same entrance as the former establishment. It was noted that the establishment had been operating as a manufacturing facility without complaint and legally met the requirements. Clarification was provided that, in 2017, there wasn’t a condition put in place regarding signage, just that a sign permit be obtained. Appreciation was expressed for the testimony presented, it was noted the legal criteria had been met and the Commission members agreed with staff’s findings and would support the Permit. Clarification provided that a Conditional Use Permit for each use was preferred so, if one use was ended, the associated permit would expire with the specific use. VOTE: YEA: Springer, Fikes, Twait, Halstead NAY: MOTION PASSED UNANIMOUSLY. Commission Chair Twait noted the fifteen-day appeal period. 2. Resolution PZ2019-29 - Recommending the Council of the City of Kenai Amend Kenai Municipal Code 14.20.330 - Standards for Commercial Marijuana Establishments, to Incorporate Hours of Operation for Retail Marijuana Establishments into the City of Kenai’s Code of Ordinances. MOTION: Commissioner Halstead MOVED to approve Resolution No. PZ2019-29 and Commissioner Springer SECONDED the motion. City Planner Appleby reviewed the staff report provided in the packet noting the recommendation would go to City Council to amend the Municipal Code to provide local closure requirement be from 2:00 a.m. to 8:00 a.m., consistent with other areas in the Kenai Peninsula Borough; also noted the State of Alaska’s regulations were from 5:00 a.m. to 8:00 a.m. Chair Twait opened the floor for public testimony. Ron Isaacs spoke against the resolution noting alcohol establishments could be open later; suggested alcohol and other drugs were more dangerous than marijuana. Mr. Isaacs also suggested that if a retail marijuana store wanted to stay open until 5:00 a.m. during times of high ___________________________________________________________________________________ Planning and Zoning Commission Meeting Page 5 of 7 August 14, 2019 volume, such as during the Dipnet Fishery, they should be able to. There being no one else wishing to be heard, public comment was closed. It was noted the desire was to match the Kenai Peninsula Borough regulations so there was no undue advantage. The suggestion was made that it may be an issue for Kenai to be open later than Soldotna in terms of a customer driving to get product. Cost effectiveness of being open versus being closed during slow times was also discussed. VOTE: YEA: Springer, Fikes, Twait, Halstead NAY: MOTION PASSED UNANIMOUSLY. 3. Resolution PZ2019-32 - Recommending the Council of the City of Kenai Enact Ordinance 3072-2019 to Renaming, Repealing, and Re-enacting Kenai Municipal Code Title 22-General Fund Lands, Renaming Title 21-City Airport and Airport Lands, and Repealing Kenai Municipal Code Chapter 21.15-Lease and Sale of Airport Lands Outside of the Airport Reserve to Encourage Responsible Growth and Development to Support a Thriving Business, Recreation and Cultural Community through Responsible Land Policies and Practices. MOTION: Commissioner Springer MOVED to approve Resolution No. PZ2019-32 and Commissioner Halstead SECONDED the motion. City Planner Appleby reviewed the staff report provided in the packet noting that a working group within Administration developed the policies and procedures and Council had referred the Ordinance to the Commission for a recommendation. She added that the Ordinance offered development incentives, provided for a competitive lease and sale process, and required development to discourage speculation. Appleby also noted the proposed changes aligned with two objectives identified in the Comprehensive Plan. Chair Twait opened the floor for public testimony; there being no one wishing to be heard, public comment was closed. VOTE: YEA: Springer, Fikes, Twait, Halstead NAY: MOTION PASSED UNANIMOUSLY. G. UNFINISHED BUSINESS – None. Generated:All Permitted Marijuana Facilities 7/19/18 Majestic Gardens L & J Outfitters .4,300 ' Red Run Kenai River Cannabis East Rip Red Run Grateful Buds Peninsula Botanicals Generated:Marijuana Cultivation Facilities 7/19/18 Majestic Gardens Grateful Buds Peninsula Botanicals Red Run .4,300 ' Red Run Generated:Marijuana Manufacturing Facilities 7/19/18 Majestic Gardens L & J Outfitters .4,300 ' Red Run Generated:Marijuana Retail Stores 7/19/18 Majestic Gardens Kenai River Cannabis East Rip Red Run .4,300 '