Zoning Board of Appeals

CITY OF BATTLE CREEK ZONING BOARD OF APPEALS 10 North Division, Battle Creek, MI 49014 MINUTES FOR MEETING -TUESDAY, JULY 12, 2022 MEETING CALLED TO ORDER: By Chairperson Moreno at 4:01 p.m. This meeting was held in person. ATTENDANCE: Chair Moreno asked for attendance. A roll call was taken: PRESENT: CHAIRPERSON JAMES MORENO BOARD MEMBER MICHAEL DELAWARE BOARD MEMBER BILL HANNER BOARD MEMBER CHRIS ROGERS BOARD MEMBER MARK JONES EXCUSED: BOARD MEMBER NORRIS LINDSEY STAFF PRESENT: SUSAN CRONANDER, PLANNING AND ZONING ADMINISTRATOR; MARCEL STOETZEL, DEPUTY CITY ATTORNEY; MARCIE GILLETTE COMMUNITY SERVICES DIRECTOR; CRYSTAL BAX, CUSTOMER SVC. REP II. APPROVAL OF MINUTES FOR JUNE 14TH, 2022 MEETING: MOTION MADE BY COMM. HANNER TO APPROVE THE MEETING MINUTES FOR JUNE 14, 2022 AS PRESENTED. SECONDED BY COMM. DELEWARE. ALL IN FAVOR, 5-0, MOTION APPROVED. CORRESPONDENCE: None PUBLIC HEARINGS/DELIBERATIONS: NEW BUSINESS: A) A-01-22 APPEAL OF THE ZONING ADMINISTRATOR’S DECISION: An appeal from EGC Processing, LLC, 4661 W. Dickman Road, Ste. A, Battle Creek, MI 49037. Requesting to reverse the Zoning Administrator’s decision to deny a request by EGC Processing, LLC to build a 2,480 square foot addition to their existing non-conforming use as a licensed marihuana processing facility in an I-2 Heavy Industrial District zoning district where the non-conforming site is located within 1,000 feet of a residentially zoned property. Pursuant to City of Battle Creek Zoning Ordinances Sections 1251.27 Marihuana: Medical and Adult Use Marihuana Grow Operation and 1251.28 Marijuana: Medical and Adult Use Marijuana Processing Facility, 1270.01 et seq., and 1280.03. 1 Staff Presentation: Susan Cronander, Planning Administrator, presented the staff report, The subject site, 4661 Dickman Road, Ste. A., is zoned I-2 Heavy Industrial District which currently allows medical and adult use marihuana processing facilities as long as they meet the requirements of Section 1251.28 of the City of Battle Creek’s Zoning Ordinance. The Zoning Ordinance, effective December 11, 2020, amended April 13, 2021, states that a medical marihuana processing facility “must be located at least 1,000 feet away from properties, as measured between nearest property lines. Buildings for a use other than residential, cannot be changed in height, area, bulk, or use. Therefore, the proposed 2,480 square foot building addition to the legal nonconforming medical and adult use marihuana processing facility is not permitted. Applicant Presentation: Will Furtado, EGC Processing’s Attorney stated that they are appealing the zoning administrator’s decision to deny the request to build a 2,480 square foot addition to the property located at 4661 W Dickman that had been operating as a fully operational, approved and licensed permitted cannabis facility, and they went through four separate approvals and each application had been granted until May when they applied for the building permit intended for expanding its edibles line. They were not made aware of the 1000ft buffer when they were initially approved by the city and the state, and were notified they were in violation of the zoning ordinance following the most recent building permit request. An appeal was filed because they believe they are operating in accordance with the zoning ordinance as the City of Battle Creek has enforced it. Public Comments: None, Public Hearing Closed. A MOTION WAS MADE BY BOARD MEMBER JONES TO APPROVE THE REVERSAL OF THE ADMINISTRATOR’S DECISION, AS PRESENTED. SECONDED BY BOARD MEMBER DELAWARE. ZONING BOARD DISCUSSION: Board Member Rogers: asked for clarification of the status of the property being legal non-conforming, and whether it is in violation of the current ordinance. Inquired when did EGC Processing, LLC get the permit approval and when the 1000ft set back was put in place in the Zoning Ordinance. Staff Member Susan Cronander stated that she wasn’t sure at this point whether that is the case, and when the ordinance was changed vs when the improvements were made, but the fact is, it was approved, they put money into it, and court cases have determined that once you put money into something like that, that it should be considered legal non-conforming. Expansions are not allowed per the current Zoning Ordinance. Board Member Rogers asked is there anyone with the city that can speak to the time of events behind the facility being licensed and at the same time falling into legal non-conforming. Deputy City Attorney Stoetzel stated that Deputy City Attorney Jonathan Baber was available via video conference to answer questions board members may have. Also stated that things happened before and after the zoning ordinance was amended that made this property legal non-conforming. 2 Deputy City Attorney Stoetzel stated that the Zoning Ordinance was over-hauled in December of 2020, and amended in April of 2021. Deputy City Attorney Baber stated that one of the cases cited had a particular situation where there were building permits issued in error on behalf of the city and the applicant, and the supreme court allowed the work to continue in light of that error, but this does not address in this case of an expansion once a mistake has been discovered. Ultimately in the case of 4661 Dickman, even if there was a mistake in the approval, and they had finished that build out we would be here today knowing that they are in violation of the set back and make that determination as far as whether the City must grant the building permit knowing they’re in violation of the setback. This is a difference scenario than both cases presented by the petitioner. Deputy City Attorney Stoetzel and Staff Member Susan Cronander both confirmed that the new Zoning Ordinance was voted on in November of 2021 and took effect in December 2021. (Later corrected themselves to November of 2020 and December of 2020) PUBLIC COMMENTS: Ron DiCicco of 4661 W Dickman LLC stated that the administration developed zoning requirements to be memorialized in green zones where cannabis related endeavors would be allowed to operate he purchased a property in the green zone that met his requirements. Paul Tylenda of 18720 Mack Ave. suite 270 Gross Point, MI 48236 stated that he found in Ordinance 10-2020 passed 11/24/2020 amended with ordinance 4-2021 passed 4/13/2021. He pointed out that the administration is considering a residential area that is located in another jurisdiction and indicated so on the map they provided as support. He stated that neighbors should not be allowed to state what you cannot place restrictions upon a neighbor due to separate sovereignty. Only if it were an ordinance passed by state should neighbors have to comply with the 1,000ft buffer. A VOTE WAS TAKEN ON THE MOTION MADE BY BOARD MEMBER JONES, SECONDED BY BOARD MEMBER DELAWARE, TO APPROVE THE REVERSAL OF THE ADMINISTRATOR’S DECISION, AS PRESENTED. VOTED YES: JONES VOTED NO: DELAWARE, HANNER, ROGERS, MORENO THE MOTION FAILED ON A 4-1 VOTE. ADJOURNMENT: Chairperson Moreno adjourned the meeting at 5:35 p.m. Submitted by: Crystal Bax, CSR II, Planning and Zoning M:\Planning Files\Planning Dept\1. Zoning Board\2. Minutes\Year 2022\ZBA 07.12.22 DRAFT.docx 3