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-92J (Planned Unit Development) and BAZ-2060 (Rezoning), 1320 E. Kenosha Street, 0.63 acres, PUD-92/CH to PUD-92J/CH/IL, located north of Kenosha Street (71st Street), one-third mile east of 9th Street (177th E. Avenue/Lynn Lane) at 1350 E. Kenosha Street
End
Background:
Applicant: Sherri Hamilton
Owner: Kirk Hamilton and Sherri Hamilton
Developer: Kirk Hamilton and Sherri Hamilton
Engineer: Cyntergy
Location: North of Kenosha Street (71st Street), one-third mile east of 9th Street (177th E. Avenue/Lynn Lane) at 1350 E. Kenosha Street
Size of Tract 0.63 acres
Present Zoning: PUD-92/CH
Proposed Zoning: PUD-92J/CH/IL
Comp Plan: Level 6
Planned Unit Development (PUD)-92J, which is a request for a major amendment to PUD-92, involves a 0.63 acre parcel located north of Kenosha Street (71st Street), one-third mile east of 9th Street (177th E. Avenue/Lynn Lane) at 1350 E. Kenosha Street. In conjunction with PUD-92J, applicant has submitted BAZ-2060, a request to change the underlying zoning from CH (Commercial Heavy) to CH (Commercial Heavy) and IL (Industrial Light).
As noted in their design statement for PUD-92J, the owner of the property wants to allow a tenant to use a portion of the existing building for processing edible medical marijuana. According to Oklahoma Admin. Code 310:681-1-4, “Process means to distill, extract, manufacture, prepare, or otherwise produce a medical marijuana product. Processor or Commercial Processor means an individual or entity that has been issued a medical marijuana commercial license by the Department, which allows the processor to: purchase medical marijuana or medical marijuana products from a grower or processor; process, package, and sell, transfer, transport or contract with a commercial transporter to transport medical marijuana or medical marijuana products that they processed to a licensed dispensary, processor, or testing laboratory in accordance with Oklahoma law and this Chapter; and process medical marijuana received from a licensed patient into a medical marijuana concentrate, for a fee.”
To be able to process medical marijuana, including edible marijuana, the applicant must receive a Certificate of Compliance as part of their Oklahoma Medical Marijuana Authority business license. As part of the Certificate of Compliance, the applicant must receive from the local jurisdiction confirmation that the proposed use is in compliance with the local zoning ordinance. In Broken Arrow, the processing of medical marijuana, including edible medical marijuana, falls under the category of “Manufacturing Light” in the Zoning Ordinance, which is a permitted use in the IL (Industrial Light) and IH (Industrial Heavy) zoning districts.
The property has been platted as Lot 8, Block 1, Kenosha Crossing and contains the south 20 feet of the west 125 feet of Lot 10, Block 1, Kenosha Crossing. The south 20 feet of west 125 feet of Lot 10, Block 1, Kenosha Crossing was created with lot split case BAZ 728 that was approved by the Planning Commission on May 22, 1997.
PUD 92 and BAZ 1232 (a request for a change in zoning on 31.52 acres from A-1 to C-4 and C-5) were approved by the City Council on September 5, 1995. Both PUD 92 and BAZ 1232 were approved subject to the property being platted. The plat for Kenosha Crossing was filed in Tulsa County on July 16, 1996. On May 22, 1997, the Planning Commission conditionally approved a site plan for the Ole South Pancake House. Today, the building is occupied by Hamilton’s Bud and Bloom Dispensary. Hamilton’s Bud and Bloom Dispensary received their license from the City of Broken Arrow to have a medical marijuana dispensary on December 9, 2019.
Prior to a dispensary being located in the building, it was used by three different restaurants. When PUD-92 was approved by the City Council on September 5, 1995, it was acknowledged that “The development of Kenosha Crossing shall be subject to the Planned Unit Development provisions of the Broken Arrow Zoning Code, as the same existed on September 5, 1995, or as subsequently amended.” In 2008, the Zoning Ordinance was updated, and the C-4 and C-5 districts became CH. 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. Therefore, medical marijuana, retail sale is a permitted use in PUD-92.
As noted earlier, the owner of the property wants to allow a tenant to use a portion of the existing building for processing edible medical marijuana. The processing of medical marijuana falls under the category of “Manufacturing Light” in the Zoning Ordinance. Included in the definition for “Manufacturing Light” is the following statement, “The manufacture, assembly, research, or processing of products and goods occurs entirely within an enclosed structure requiring no outdoor industrial wastewater treatment system, and producing no airborne emission, objectionable noise, glare, odor, vibration, smoke or dust associated with the industrial operation.” “Manufacturing Light” is allowed in the IL (Industrial Light) and IH (Industrial Heavy) districts, but not in the CH district. Since processing, whether for medical marijuana or other products, was already a permitted use in the IL and IH districts, it was not included in Ordinance 3540 that pertained to medical marijuana dispensaries and medical marijuana commercial growing/cultivating facilities. Consequently, since “Manufacturing Light,” including the processing of edible medical marijuana, is not allowed in the CH district, applicant has submitted a request for a major amendment to PUD-92 to allow “Manufacturing Light” as a permitted use along with a request to change the underlying zoning from CH to CH and IL.
With PUD-92J, the 0.63 acre site is divided into two areas, Development Area A and Development Area B. According to the design statement for PUD-92J, Development Area A, which contains 0.25 acres on the north part of property, will be developed in accordance with the Broken Arrow Zoning Ordinance and the use and development regulations of the Commercial Heavy (CH) and the Industrial Light District (IL) except that the uses permitted are limited to “Manufacturing Light” including Medical Marijuana Commercial Processing (up to 820 square feet of the building) and those uses allowed in the CG (Commercial General) district. In addition, the following restrictions apply:
• All manufacturing uses will remain inside the building.
• No outside storage is permitted.
• Site will meet all state requirements.
• No signage for Medical Marijuana Commercial Processing is permitted.
• Medical Marijuana Dispensary is not permitted.
• Medical Marijuana Commercial Growing/Cultivation is not permitted.
Development Area B, the south 0.38 acres of the property, will be developed in accordance with the Broken Arrow Zoning Ordinance and the use and development regulations of the Commercial Heavy District except for the following:
• Medical Marijuana Commercial Processing and Medical Marijuana Commercial Growing/Cultivation is not permitted.
According to the design statement, there are 44 existing parking spaces. No new parking spaces will be required or installed. Furthermore, none of the existing parking spaces will be removed without the approval of the Planning Commission. Existing access points will continue to remain as is.
Landscaping will continue to be maintained per the landscape plan approved by the Planning Commission on September 10, 1997. Any landscaping that fails will be in accordance with the Zoning Ordinance.
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-92/CH |
Former furniture store |
|
East |
Level 6 |
PUD-92/CH |
Restaurant |
|
South |
Level 6 |
CH |
Restaurants and shopping center |
|
West |
Level 6 |
PUD-92/CH |
Bank |
With BAZ-2060, applicant is requesting to change the zoning on the property from CH (Commercial Heavy) to CH (Commercial Heavy) and IL (Industrial Light). According to Section 6.3.D.3 of the Zoning Ordinance, “The City Council may approve rezoning, and Planning Commission may recommend approval, if the rezoning meets all of the following criteria:
a. The rezoning will promote the public health, safety, and general welfare;
b. The rezoning is consistent with the comprehensive plan and the purposes of this Ordinance;
c. The rezoning is consistent with the stated purpose of the proposed zoning district;
d. The rezoning is not likely to result in significant adverse impacts upon other property in the vicinity of the subject tract; and
e. Future uses on the subject tract will be compatible in scale with uses on other properties in the vicinity of the subject tract.”
Regarding the purpose of the Zoning Ordinance, Section 1.3.E of the Zoning Ordinance states, “Promote a balanced supply of commercial, industrial, institutional, and transportation land uses that is compatible with adjacent land uses and has good access to transportation networks.” Commercial Heavy is defined in the Zoning Ordinance as “This district is intended primarily of uses that provide commercial goods and services to residents of the community in areas that are dependent on automobile access and exposed to heavy automobile traffic. These commercial uses are subject to frequent view by the public and visitors to Broken Arrow, and they should provide an attractive appearance with landscaping, sufficient parking, and controlled traffic movement.” Industrial Light is defined as “The IL district is intended to provide for light manufacturing, processing, service, storage, wholesale, and distribution operations with all operations contained within an enclosed building. The intent is to preserve this land for light industrial and service -oriented commercial uses.”
Therefore, one of the purposes of the Zoning Ordinance is to promote compatible land uses. A concern Staff has with BAZ-2060, which has been shared with the applicant, is requesting to change the zoning on 0.25 acres from CH to IL in an area that is zoned and used commercially. There are no industrial type uses in the building associated with PUD-92J/BAZ-2060 or in close proximity. The closest IL zoning and use (an automobile collision repair facility) is over 600 feet to the southeast. As a result, the IL zoning being sought with BAZ-2060 is just a small area in an otherwise predominantly commercial area.
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.
It appears PUD-92J is attempting to satisfy item 1 of Section 6.4.A of the Zoning Ordinance, but does not meet any of the other purposes for a PUD. With PUD-92J, all manufacturing shall occur inside the building, no outdoor storage is permitted, and no signage for medical marijuana commercial processing is permitted. With these restrictions, the processing of medical marijuana will not be visually apparent. In addition, with PUD-92J, applicant is requesting that the commercial uses allowed in Development Area A be decreased from those allowed in the CH district, to those allowed in the CG district. However, Staff does not see anything innovative with PUD-92J. PUD-92J seems to be attempting to insert an industrial use into a commercial area.
According to Policy LU10 of the Comprehensive Plan, “The City shall protect commercial areas from the encroachment on non-commercial uses.” Kenosha Crossing was established as a commercial area. As noted in PUD-92, “The use of the Lots within Kenosha Crossing shall be limited to the uses permitted by right within a C-4 Automotive Sales and Service District or C-5 Highway Commercial and Commercial Recreation District as set forth within the Broken Arrow Zoning Code.” Therefore, Kenosha Crossing was established strictly as a commercial area.
Applicant has referenced to Staff that on January 21, 2020, the City Council reviewed and approved PUD-297 that involved 2.21 acres located west of the northwest corner of New Orleans Street and Elm Place. In conjunction with PUD-297, BAZ-2044 was also submitted asking that the underlying zoning be changed from CG to CG and IL. The design statement submitted with PUD-92J is similar to the design statement submitted with PUD-297. The owner of the property associated with PUD-297 wanted to lease space to a tenant who desired to use a portion of the existing building for the processing of medical marijuana into edible food products, similar to what is being requested with PUD-92J. However, there are differences between the two cases. With PUD-297, the existing building contained a laboratory and a pharmaceutical company that specialized in the wholesale conversion of large quantities of medical supplies into smaller packages for shipment and distribution, an industrial type of use. The processing of medical marijuana is allowed in Development Area A of PUD-297. In addition, PUD-297 acknowledged that Development Area B (the south part of the property) allows “Industrial Light specifically limited to assembly, light and warehouse.” PUD-297 also stipulated that the growing of medical marijuana, as well as a medical marijuana dispensary, are not permitted uses in either Development Area A or Development Area B. Conversely, PUD-92J is requesting that a medical marijuana dispensary continue to be allowed in Development Area B.
PUD-297 was established to allow a limited amount of light industrial uses that complimented the existing uses occurring in the building, as well as the surrounding land uses. Mini-storage buildings are located southwest of the property associated with PUD-297. In addition to the mini-storage, there was 8.54 acres of stormwater detention. Consequently, there are noticeable differences in the land uses occurring around PUD-297 and those occurring with PUD-92J.
According to FEMA maps, none of the property is located in a 100-year floodplain area.
Attachments: Case map
Aerial photo
Comp Plan
PUD-92J design statement
Kenosha Crossing recorded plat
Excerpts from the Zoning Ordinance
Comprehensive Plan policy LU10
June 25, 2020, email from Justin DeBruin regarding Medical Marijuana Processors
Recommendation:
BAZ-2060 is requesting to change the zoning on the property from CH to CH and IL, while PUD-92J is requesting a major amendment to PUD-92 to allow “Manufacturing Light”, including Medical Marijuana Commercial Processing. Medical Marijuana Commercial Processing is recognized in the Zoning Ordinance as a permitted use in “Manufacturing Light”. Currently, the City of Broken Arrow has issued three permits for medical marijuana processing and has two other permit applications that are currently being processed. Therefore, with respect to BAZ-2060 and PUD-92J, what the Planning Commission needs to evaluate, is if “Manufacturing Light” is a proper land use at 1350 E. Kenosha Street.
Comprehensive Plan policy LU10 acknowledges that the City of Broken Arrow shall protect commercial areas from the encroachment of non-commercial uses. Kenosha Crossing, the development associated with PUD-92, was established as a commercial area in 1995. Therefore, in accordance with the Comprehensive Plan, the commercial uses in Kenosha Crossing should be protected from the intrusion of light industrial uses. Also, adding the provision for medical marijuana processing to an existing medical marijuana dispensary is not innovative land development as stipulated in Section 6.4 of the Zoning Ordinance, but seems to circumvent the Zoning Ordinance. Staff concludes that introducing a small light industrial use as requested with BAZ-2060 in an otherwise predominantly commercial area is not the proper location for an industrial use and does not promote compatible land uses as stipulated in the Zoning Ordinance. Therefore, based upon not being in compliance with the policies of the Comprehensive Plan, not meeting the requirements of Sections 6.3 and 6.4 of the Zoning Ordinance, the location of the property (requesting an industrial use in a predominately commercial area), and the surrounding commercial land uses, Staff recommends that PUD-92J and BAZ-2060 be denied.
Reviewed by: Jill Ferenc
Approved by: Larry R. Curtis
BDM