Broken Arrow Planning Commission
10-08-2020
To: Chairman and Commission Members
From: Development Services Department
Title:
title
Public hearing, consideration, and possible action regarding PUD-47H (Planned Unit Development), Cloudi Mornings, 0.21 acres, PUD-47/CG/IL to PUD-47H/CG/IL, located one-quarter mile south of Albany Street (61st Street), one-half mile west of Olive Avenue (129th E. Avenue)
End
Background:
Applicant: Austin Miller
Owner: Patricia Williams
Developer: Austin Miller
Engineer: NA
Location: One-quarter mile south of Albany Street (61st Street), one-half mile west of Olive Avenue (129th E. Avenue)
Size of Tract 0.24 acres
Present Zoning: PUD-47/CG/IL
Proposed Zoning: PUD-47H/CG/IL
Comp Plan: Level 6
Planned Unit Development (PUD)-47H involves a 0.24-acre parcel located one-quarter mile south of Albany Street (61st Street), one-half mile west of Olive Avenue (129th E. Avenue). Applicant is requesting a major amendment to PUD-47 to allow a medical marijuana growing/cultivation facility to be located on the property. The property, which is located at 2201 N. Yellowood Avenue, (South 55 feet of Lot 21, Block 3, 6100 Center), is presently zoned PUD-47/CG/IL.
When the public notice for this PUD amendment was provided, it had referenced PUD-35C and PUD-47H. Upon further examination, it was discovered that this property is not located in PUD-35 and only PUD-47H is applicable.
PUD-35, which contained 79.04 acres, was approved by the City Council on May 16, 1983. Previously, in September 1973, the City Council had approved BAZ-432 to change the zoning on the property associated with PUD-35 from R-1 to 61.22 acres of I-1, 14.87 acres of R-5, and 3.91 acres of O-2. PUD-35 proposed a mixture of land uses including multifamily, commercial, and industrial. While the property where PUD-47H is located contained an underlying zoning as R-5 and I-1, the property was designated as “industrial” in PUD-35. PUD-35 did not place any limitations on the uses permitted. Therefore, the industrial uses permitted are those that were allowed in 1983 when PUD-35 was approved.
On April 16, 1984, the City Council approved PUD-47 and BAZ-962, a request to change the R-5 zoning associated with the multifamily area of PUD-35 to I-1, light industrial. With the approval of BAZ-962, the underlying zoning on the property associated with PUD-47H became O-2 and I-1. However, PUD-47 stated that the uses permitted on the property were those allowed in the I-1 district. In 2008, the City of Broken Arrow updated its Zoning Ordinance, and the area that had been designated as O-2 when BAZ-962 was approved was changed to CG. As a result, the zoning map now shows the zoning on the property to be PUD-47/CG/IL.
At the time PUD-47 was approved, the growing of medical marijuana was not recognized as a permitted use in the I-1 district.
On September 18, 2018, the City Council approved Ordinance 3540 that established regulations for retail medical marijuana dispensaries and medical marijuana commercial growing/cultivating facilities. Medical marijuana growing/cultivating facilities were recognized as a permitted use in the IL (Industrial Light) zoning district. On September 25, 2018, a lawsuit was filed asking the court to make a legal determination whether the City of Broken Arrow had any authority to zone or otherwise regulate medical marijuana businesses within city limits. The trial court agreed with the plaintiff and on October 17, 2018, issued a declaratory judgement finding, as a matter of law, that Oklahoma cities were precluded from adopting regulations, zoning overlays, fees, or other restriction relating to medical marijuana business activities. This decision was appealed by the City of Broken Arrow. The Oklahoma Legislature enacted laws that became effective August 30, 2019, that stated, “Municipalities may follow their standard planning and zoning procedures to determine if certain zones or districts would be appropriate for locating marijuana-licensed premises, medical marijuana businesses or any other premises where marijuana or its by-products are cultivated, grown, processed, stored or manufactured.” The plaintiff’s lawsuit was dismissed by the Oklahoma Supreme Court on November 19, 2019. A complete copy of the Supreme Court ruling is attached with this Staff report.
Today, the City of Broken Arrow Zoning Ordinance recognizes that medical marijuana growing/cultivating is a permitted use in the IL district. For the applicant to be able to renew their medical marijuana license, they must receive acknowledgement from the local jurisdiction that the growing/cultivation facility is in compliance with the Zoning Ordinance. Therefore, for Staff to acknowledge that the zoning is in compliance, medical marijuana growing/cultivation has to be recognized as a permitted use. Since PUD-47 did not acknowledge medical marijuana growing/cultivation as a permitted use, the PUD must be modified. According to the Zoning Ordinance, to change the list of permitted uses in a PUD requires a major amendment to the PUD. As a result, applicant has submitted a request for a major amendment to PUD-47 to allow medical marijuana growing/cultivation to be a permitted use. This is the only change being requested to PUD-47.
According to the applicant, they have contacted the Board for the 6100 Center Property Owners Association about their requested modification to PUD-47 and was informed that the Board had no issues with the request.
SURROUNDING LAND USES/ZONING/COMPREHENSIVE PLAN
The surrounding properties contain the following uses, along with the following development guide and zoning designations:
|
Location |
Development Guide |
Zoning |
Land Use |
|
North |
Level 6 |
PUD-47/CG/IL |
Light Industrial |
|
East |
Level 6 |
PUD-35/IL |
Light Industrial |
|
South |
Level 6 |
PUD-47/IL |
Light Industrial |
|
West |
Level 6 |
PUD-47/CG |
Light Industrial |
The property associated with PUD-47H is designated as Level 6 in the Comprehensive Plan. The existing light industrial designation in PUD 47 is in accordance with the Comprehensive Plan in Level 6.
According to Section 6.4 of the Zoning Ordinance, the PUD provisions are established for one (1) or more of the following purposes:
1. To permit and encourage innovative land development while maintaining appropriate limitation on the character and intensity of use and assuring compatibility with adjoining and proximate properties.
2. To permit greater flexibility within the development to best utilize the physical features of the particular site in exchange for greater public benefits than would otherwise be achieved through development under this Ordinance.
3. To encourage the provision and preservation of meaningful open space.
4. To encourage integrated and unified design and function of the various uses comprising the planned unit development.
5. To encourage a more productive use of land consistent with the public objectives and standards of accessibility, safety, infra structure and land use compatibility.
In Staff’s opinion, PUD-47 continues to satisfy item 1 of Section 6.4.A of the Zoning Ordinance. When PUD-47 was approved by the City Council in 1984, a height limitation of one story was placed on buildings within 150 feet of the Melinda Park addition to the west. In addition, buildings were required to setback at least 75 feet from the property line abutting the Melinda Park addition, along with a 40-foot wide landscape buffer. All these conditions remain. The only change being made is to allow the growing/cultivation of medical marijuana inside an enclosed building on the east side of Yellowood Avenue.
According to the Zoning Ordinance, no schools are allowed within a 1,000 feet of a medical marijuana growing/facility. A detailed survey will be conducted as part of any application for a medical marijuana license from the City of Broken Arrow. Staff did review aerial photographs, and there were no schools found within 1,000 feet of the proposed growing/cultivation facility.
According to FEMA maps, none of the property is located in a 100-year floodplain area.
Attachments: Case map
Aerial photo
Comp Plan
Design Statement for PUD-47H
Design Statement for PUD-47
Case maps for BAZ-432 and BAZ-962
November 19, 2019, Oklahoma Supreme Court ruling
September 1, 2020, email from Austin Miller
Recommendation:
On September 18, 2018, the City of Broken Arrow adopted regulations pertaining to medical marijuana facilities. Medical marijuana growing/cultivation is recognized as a permitted use in the IL (Industrial Light) district. When PUD 47 was approved in 1984, medical marijuana growing/cultivation was not recognized as a legal use and was not included as a permitted use in PUD-47. To change any permitted uses in a PUD requires a major amendment to the PUD. PUD-47H addresses this unique situation and requests that medical marijuana growing/cultivation be allowed as a permitted use on the property.
Based upon the Comprehensive Plan, the location of the property, the existing PUD, the unique condition associated with the request, and the surrounding land uses, Staff recommends that PUD-47H be approved as requested. Since the property has already been platted, Staff recommends that platting be waived.
Reviewed by: Jill Ferenc
Approved by: Larry R. Curtis
BDM