Zoning Board of Appeals

CITY OF BATTLE CREEK ZONING BOARD OF APPEALS 10 North Division, Battle Creek, MI 49014 MINUTES FOR MEETING -TUESDAY, JANUARY 11, 2022 MEETING CALLED TO ORDER: By Chairperson Moreno at 4:00 p.m. This meeting was held in person. ATTENDANCE: Chair Moreno asked for attendance. A roll call was taken: PRESENT: CHAIRMAN JAMES MORENO COMMISSIONER MICHAEL DELAWARE COMMISSIONER BILL HANNER COMMISSIONER MARK JONES COMMISSIONER AUBREY KIPP ABSENT: NORIS LINDSEY STAFF PRESENT: SUSAN CRONANDER, PLANNING AND ZONING ADMINISTRATOR; TRAVIS SULLIVAN, PLANNER; MARCEL STOETZEL, DEPUTY CITY ATTORNEY; AND VANESSA HERNANDEZ, CUSTOMER SVC. REP II. APPROVAL OF MINUTES FOR DECEMBER 14, 2021 MEETING: MOTION MADE BY COMM. HANNER TO APPROVE THE MEETING MINUTES FOR DEC. 14, 2021 AS PRESENTED. SECONDED BY COMM. DELAWARE. ALL IN FAVOR, 5-0, MOTION APPROVED. CORRESPONDENCE: None PUBLIC HEARINGS/DELIBERATIONS: Announcement: Chair Moreno asked the board if they wanted to elect new officers at the beginning or at the end of the meeting, all agreed to elect officers for 2022 towards end of the meeting. NEW BUSINESS: A) Z-15-21 ZONING DIMENSIONAL VARIANCE REQUEST Petition from Gerry Trapasso on behalf of Eden Empire Michigan, LLC, 601 22nd Ave., Vancouver, BC, Canada V5Z 1Z5. Requesting a dimensional variance to allow Eden Empire Michigan LLC's property at 1775 E Columbia Avenue zoned B-1 Corridor Commercial to be used as a medical 1  marihuana provisioning center, despite it being within 1,000 feet of a marihuana retailer in Emmett Township. Pursuant to Section 1251.29 of the Zoning Code Staff Presentation: Susan Cronander, Planning and Zoning Administrator, verbally presented the staff report. Stated the administrative decision to deny Medical Marihuana Facility in a B-1 zoning district, “Corridor Commercial District,” where proposed site is located within 1,000 feet from another Marihuana Recreational Facility. The applicable zoning ordinance provision are detailed in the staff report. This is different than the appeal this is a nonuse or dimensional variance. Eden Empire is requesting this variance allowing the subject property to be a use as a medical marihuana provisioning center despite of being within 1,000 feet of an existing medical marihuana provisioning center in Emmett Township. The City of Battle Creek Zoning Board of Appeals may grant a dimensional variance if there are practical difficulties related to the land like construction, structural changes and alterations of building, etc. Financial considerations are not reasons to grant a variance. In granting the variance the board should review the spirit of the variance and ensure public safety is secure and substantial justice is done. The board may also pose conditions, related to the variance request itself. The zoning staff has not found that there is a practical difficulty to the subject property that prevents the owner from building or continuing the use of existing building or using or developing the property for the majority of the uses listed as permitted or special uses in the B-1 zoning district, “Commercial Corridor District.” The zoning staff recommends denial of this use variance request. Applicant Presentation: Pat Lennon, on behalf of Eden Empire LLC, shared that they are applying for a use variance based on the denial of the appeal, and is sure that the dimensional variance is definitely justified. For the record asked if this hearing is being recorded for later use if needed for circuit court appearance. In addition, stated that Eden Empire followed the ordinance, obtain building permits, and did high end construction. Under the law it’s their view that Eden Empire LLC is vested. Also asked to keep in mind that Eden Empire LLC followed the ordinance and they should be allowed to proceed. Public Comments: Mrs. Shirley Cummings, 1745 E Columbia Battle Creek, stated she lives in the building property next door. Stated that the 1,000 foot setback is there for a reason and to have guidelines. Believes that everyone can use hardship as a reason for a variance. Stated wants to protect her property and that the Planning Commission should follow the zoning ordinance guidelines. ZONING BOARD DISCUSSION: COMM. DELAWARE stated that the original marihuana licensing came from Actium Botanicals. COMM. JONES shared that the applicant tenant cause the problem, when the tenant failed to get the license. Therefore based on experience the act of the tenant becomes the act or responsibility of the landlord that the tenant does the right thing. COMM. HANNER shared that if it was not for Actium losing their license Eden Empire would have been fine. CHAIRMAN MORENO stated that the standards in the ordinance are there by intent and they are there to protect the community and businesses. CHAIRMAN MORENO MADE A MOTION AND ASKED FOR A ROLE VOTE TO BE TAKEN 2  ROLL VOTE: NONE IN FAVOR, MOTION DENIED. B) APPROVAL OF ZBA MEETING DATES FOR THE YEAR 2022: Without a separate motion, the approved motion to table the public hearing was treated as approving January 11, 2022 as the next meeting date for the Zoning Board of Appeals. ROLL VOTE: ALL IN FAVOR, NONE OPPOSE, MOTION APPROVED. C) ELECTION OF OFFICERS FOR 2022 Commissioner Delaware nominated Commissioner Moreno as Chair and Commissioner Hanner as Vice Chair, asked and received with no objection, Zoning Board of Appeals accepted with no objection. ROLL VOTE: ALL IN FAVOR, NONE OPPOSE, MOTION APPROVED. OLD BUSINESS: CONTINUATION OF PUBLIC HEARING A-10-21 A) A-10-21 APPEAL OF ZONING ADMINISTRATOR’S DECISION: Petition from Gerry Trapasso on behalf of Eden Empire Michigan, LLC, 601 22nd Ave., Vancouver, BC, Canada V5Z 1Z5. Requesting to reverse the decision of the Zoning Administrator to deny Eden Empire Michigan LLC's MMF, provisioning center to be within 1,000 feet of a marihuana retailer business in Emmett Township. For property located at 1775 E. Columbia Ave. Parcel #1060-00-012-0. Pursuant to Section 1281.06 and 1280.03 of the zoning code. Applicant Presentation: Present representing the applicant (Eden Empire LLC) was Pat Lennon and Douglas Mains of Honigman LLP. Mr. Lennon stated they were not in agreement with the interpretation of the zoning ordinance by the city staff, and that the new zoning ordinance is inconsistent. Mr. Lennon described that in 2019 Eden Empire received site plan and building permit from the city to conduct business and in September 2021 the tenant could not proceed and Eden had to take over, and the “user” changed not the “use”. In addition, per Mr. Lennon, the problem is that their property is within 1,000 feet from another Marihuana Provisioning Center in another jurisdiction in Emmet Township. Staff Presentation: Susan Cronander, Planning and Zoning Administrator, verbally presented the staff report. Stated the administrative decision to deny Medical Marihuana Facility in a B-1 zoning district, “Corridor Commercial District,” where proposed site is located within 1,000 feet from another Marihuana Recreational Facility. Eden signed Medical Marihuana Facility application, on 9/20/2021, and application was reviewed and was determined that the site does not meet the setback requirements, and the City Clerk issued a denial letter on 10/14/2021. Section 1251.29 of the Battle Creek ordinance requires that Medical Marihuana Provisioning Center must be located at least 1,000 feet from another 3 property containing Adult Use Retailer, an Adult Marihuana Microbusiness, and Medical Marihuana Provision Center. These setback measurements are between nearest property lines, regardless of ownership or property of licensee. ZONING BOARD DISCUSSION: CHAIRMAN MORENO stated that the Planning and Zoning staff did the right decision based on the zoning ordinance and is voting no on #A-10-21. COMMISSIONER JONES asked if the Planning staff had any comments regarding the appellant’s submitted document. SUSAN CRONANDER asked commissioners to review the memo she provided as a summary. Stated that for an appeal the Zoning Board of Appeals makes a determination if the Planning Administrator made the correct decision based on the zoning ordinance. ROLL VOTE: NONE IN FAVOR, MOTION DENIED. PUBLIC COMMENTS: None COMMENTS BY MEMBERS: CHAIRMAN MORENO thanked everyone for their hard work and stated that he is confident the Planning Commission made the correct decision. COMMISSIONER JONES advised everyone to be prepare in case of an appeal. ADJOURNMENT: Chairperson Moreno adjourned the meeting at 5:20 p.m. Submitted by: Vanessa Hernandez, CSR II, Planning and Zoning M:\Planning Files\Planning Dept\1. Zoning Board\2.Minutes\Year 2022\ZBA 1.11.22 DRAFT.docx 4