Broken Arrow Planning Commission
07-09-2020
To: Chairman and Commission Members
From: Development Services Department
Title:
title
Public hearing, consideration, and possible action regarding PUD-118F (Planned Unit Development), Aspen Park Village, 2.80 acres, PUD-118A/CH to PUD-118F/CH, located one-quarter mile north of Kenosha Street (71st Street), east of Aspen Avenue (145th E. Avenue)
End
Background:
Applicant: Lou Reynolds, Eller and Detrich, P.C.
Owner: Liberty Crossing Apartments, LLC
Developer: Liberty Crossing Apartments, LLC
Engineer: NA
Location: One-quarter mile north of Kenosha Street (71st Street), east of Aspen Avenue (145th E. Avenue)
Size of Tract 2.80 acres
Present Zoning: PUD-118A/CH
Proposed Zoning: PUD-118F/CH
Comp Plan: Level 6
Planned Unit Development (PUD)-118F involves a 2.80-acre parcel located one-quarter mile north of Kenosha Street (71st Street), east of Aspen Avenue (145th E. Avenue). Applicant is requesting a major amendment to PUD-118F to allow a medical marijuana dispensary facility to be located on the property. The property has been platted as Lots 4 and 5, Block 1, Aspen Park Village. The space where the dispensary is being proposed was previously used for the retail sale of alcoholic beverages.
This item was on the June 11, 2020, Planning Commission agenda. Just prior to that meeting, Staff received an email from a property owner in the shopping area. Applicant requested the item be continued to the next Planning Commission meeting so they could talk to the concerned property owner. On June 25, 2020, the applicant requested PUD-118F be continued to the July 9, 2020, Planning Commission meeting. As of this report, Staff has not received any additional information from the applicant.
DEVELOPMENT HISTORY
PUD-118F is part of an overall 55.59-acre parcel that had been proposed to be developed in several different ways. On May 4, 1981, the City Council approved PUD 20, which according to the application contained 58.59 acres. The southern portion of the tract was to develop as a light industrial park for office and storage space. This area was to be buffered by a band of office and park space to the north. The northern portion of PUD 20 was intended to be developed as a duplex area. PUD 20 was not developed.
On April 15, 1985, the City Council approved SP 47 for a golf course and driving range on this property. At the time SP 47 was approved, the property was zoned R-3 and I-1. SP 47 was approved with the condition that a full public hearing and renewal be considered in five years. The City Council approved a renewal in 1990 with a condition that the Specific Use Permit be renewed again in five years. The golf course and driving range were never developed.
On March 25, 1993, rezoning application BAZ 1166 was denied by the Planning Commission. BAZ 1166 was to rezone the northern half of SP 47 from R-3 to I-1, which would have allowed I-1/light industrial uses on the entire property.
When the Comprehensive Plan was adopted in 1996, the entire 55.6 acres was designated as Level 6. On April 19, 1999, the City Council reviewed and approved BACP 17, BAZ 1383, and PUD 118. With BACP 17, the east 27.42 acres of the Comprehensive Plan was changed from Level 6 to Level 2. The west 28.18 acres remained Level 6. With BAZ 1383, the east part of the property that was zoned I-1 was rezoned to R-3 while the west part of the property that was zoned I-1 was rezoned to C-5. The east half of the property that was zoned R-3 remained R-3, while the west part of the R-3 parcel was rezoned to C-5. Overall, the R-3 area corresponded with the Level 2 area of BACP 17, while the C-5 corresponded with the Level 6. PUD-118 showed the R-3 area to be used for a 9-hole golf course. The C-5 area was to be used for commercial uses and a driving range. BAZ 1383 and PUD 118 were approved subject to platting. PUD-118 as originally proposed was not developed.
On March 14, 2002, the City Council reviewed and approved PUD-118A and BAZ-1562. PUD-118A was similar to PUD 118, but proposed the following changes:
• The nine-hole golf course was changed to a three-hole golf course and golf driving range.
• A 20-lot office park was proposed between the three-hole golf course and the retail commercial uses.
• Six duplex lots were proposed along Redbud Avenue.
With BAZ-1562, the boundaries of the C-5 area were modified and R-4 was added along Redbud Avenue. PUD 118A and BAZ-1562 were approved subject to platting.
On September 20, 2004, the City Council reviewed and approved PUD 118B. PUD 118B was the same as PUD 118A, except for modifications were made to the access points on Aspen Avenue. With PUD 118 B, five access points were allowed to Aspen Avenue. Full left and right turn movements were allowed at three of the access points while the remaining two point of access restricted to right turn only both in and out. The access point closest to the railroad tracks was restricted to right-turn only.
On June 16, 2005, the plat for Aspen Park Village was filed in Tulsa County. On June 9, 2005, the Planning Commission approved a site plan for two retail buildings along Aspen Avenue. These buildings have been constructed. PUD-118F is requesting that medical marijuana retail sales be a permitted use in these two buildings.
On October 1, 2007, the City Council approved BACP 91 that changed 40.96 acres from Levels 2 and 6 to Levels 2, 3, and 6. This was followed by PUD 118C and BAZ 1783 (changed underlying zoning from C-5 and R-3 to R-5). BACP 91, PUD 118C, and BAZ 1783 were approved subject to platting. The property was platted in 2008 as The Villas at Aspen Park and the Villas at Aspen Park apartments were subsequently developed.
On May 3, 2016, the City Council approved BACP 151 to change the Comprehensive Plan designation on the property associated with an application for PUD 118E and BAZ 1958 from Levels 2 and 6 to Level 3. BACP 151 was approved subject to the property being platted and a PUD being submitted that was similar in context to the draft submitted with BACP 151. The design statement and conceptual site plan submitted with PUD 118E was similar to the draft PUD submitted with BACP 151.
PUD-118E, which proposed 340 dwelling units for a density of 17.95 dwelling units per acre, was approved by the City Council on July 19, 2016, along with BAZ-1958 (R-3, CH, and PUD-118A to RM and PUD-118E). PUD-118E and BAZ-1958 were approved subject to platting. The conditional final plat is proposed to be submitted in the near future.
PUD-118F
At the time PUD-118A was approved, medical marijuana dispensary was not recognized as a permitted use in the CH 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, retail sales” (dispensary) was recognized as a permitted use in the CH (Commercial Heavy) 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 a medical marijuana dispensary is a permitted use in the CH district. For the applicant to be able to establish their medical marijuana license, they have to receive acknowledgement from the local jurisdiction that the dispensary is in compliance with the Zoning Ordinance. Therefore, for Staff to acknowledge that the zoning is in compliance, “medical marijuana retail sales” (dispensary) has to be recognized as a permitted use. Since PUD-118A did not acknowledge medical marijuana dispensary 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-118A to allow “medical marijuana retail sales” (dispensary) to be a permitted use in PUD-118F. This is the only change being requested to PUD-118A.
State law, as well as the Broken Arrow Zoning Ordinance, requires dispensaries to be located at least 1,000 feet from a public or private school. Theater Arts, which is an Epic Charter School, is located in the shopping center. The City Attorney’s office has advised that Theater Arts does not meet the definition for a public or private school contained in Oklahoma statute or the Oklahoma Administrative Code. 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 no schools were observed within 1,000 feet of the area where the medical marijuana retail sale use is being requested.
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-118A/CH |
Undeveloped |
|
East |
Level 6 |
PUD-118A/CH (PUD-118E/RM approved subject to platting) |
Undeveloped (Multifamily proposed) |
|
South |
Level 6 |
PUD-118A |
Undeveloped |
|
West |
Level 6 |
R-1 |
Undeveloped |
The property associated with PUD-118F is designated as Level 6 in the Comprehensive Plan. The existing CH underlying zoning, which allows medical marijuana retail sales (dispensary), 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-118F continues to satisfy item 1 of Section 6.4.A of the Zoning Ordinance. The only change being made to the PUD is to allow medical marijuana retail sales (dispensary).
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-118F
November 19, 2019, Oklahoma Supreme Court ruling
Email from Jake Pfarr.06-11-2020
Request to appear. Chase Elkins. 06-11-2020
Recommendation:
Staff recommends that PUD-118F be approved as requested.
Reviewed by: Jill Ferenc
Approved by: Larry R. Curtis
BDM