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03-09-10KALISPELL CITY PLANNING BOARD & ZONING COMMISSION MINUTES OF REGULAR MEETING MARCH 9, 2010 CALL TO ORDER AND The regular meeting of the Kalispell City Planning Board and ROLL CALL Zoning Commission was called to order at 7:00 p.m. Board members present were: Bryan Schutt, John Hinchey, Rick Hull, C.M. (Butch) Clark, Chad Graham, and Troy Mendius. Richard Griffin was absent. Sean Conrad, P.J. Sorensen, and Tom Jentz represented the Kalispell Planning Department. There were approximately 20 people in the audience. APPROVAL OF MINUTES Mendius moved and Hinchey seconded a motion to approve the minutes of the January 12, 2010 meeting of the Kalispell City Planning Board and Zoning Commission. ROLL CALL The motion passed unanimously on a roll call vote. PUBLIC COMMENT No one wished to speak. TEXT AMENDMENT: A request by NWMT Holdings, LLC for a zoning text amendment NWMT HOLDINNGS, LLC to amend Section 27.25.110(1) of the Kalispell Zoning Ordinance. This section of the zoning ordinance requires casinos to be a minimum of 300 feet from other casinos as measured from property line to property line. The request is to reduce this distance to 150 feet in cases where U.S. Highway or U.S. Highway 2 separates the casinos. STAFF REPORT KZTA-10-02 Sean Conrad representing the Kalispell Planning Department reviewed staff report KZTA-10-02. Conrad reported this is a request to amend the zoning text to reduce the currently required 300 foot separation from one casino to another to 150 feet if the casino properties are separated by either Highway 2 or Highway 93. Conrad provided a brief history of the casino regulations in the city. Conrad reviewed the Hilton Garden Inn PUD where they requested a reduction in the 300 foot buffer from parks because of the close proximity of Lion's Park. The council approved the request because of the highway separation. After the PUD approval the city council instructed staff to review the current regulations which resulted in the amendment that would allow all casinos within the 300 foot buffer if the casino was a minor incidental use of the property and was not more than 10% of the floor area. The council also put parameters on casino signage — or outright prohibition of the signage; limiting the number and location of entrances into the casino; and possibly requiring additional landscape buffering Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 1 of 11 between the casino and adjacent land uses if it was deemed appropriate. When the Montana Club came in with a proposed restaurant/bar/casino at the location of the former Sawbucks on South Main and 13th Street East this location was within 300 feet of a residential zoning district. The developers agreed to locate the casino at the furthest end away from the residential zone and limit the size of the casino to no more than 10% of floor area. The city council approved their conditional use permit and in addition allowed a small casino sign be placed on the freestanding sign along the highway. As previously stated the request for the text amendment would reduce the buffer to 150 feet because Highway 2 would separate the 2 businesses. A 300 foot buffer would still be maintained between the casino and city residential zones, churches and parks and other casinos if they are on the same side of the highway. If the planning board recommends approval, and the city council approves the request, the Silverado Casino could then locate at this site. Staff recommends that the Kalispell City Planning Board review the findings in staff report KZTA-10-02 and consider whether the proposed text amendment is appropriate or not. The planning board may also want to consider criteria included in section 27.35.110, Additional Requirements For Specific Conditional Uses — Casinos, and placing limitations on the size of proposed signs for the casino and other criteria the board may deem appropriate. APPLICANT/TECHNICAL Dawn Marquardt, Marquardt & Marquardt Surveying said she is SUPPORT representing the owners and applicants of this request. Marquardt said the staff report is straight -forward but she noted they had been working on this project for some time when it was discovered that another casino was within 300 feet of this site. They then worked with staff who suggested the text amendment. Terry Anderson, Silverado Casino, said they lost their current lease and this site was proposed. They have had this business for many years and they preferred to relocate as close to their current client base as they could. Butch Clark stated he and his wife own a casino in downtown Kalispell and he talked to the City Attorney about recusing himself from the discussion since he is a casino owner in downtown Kalispell. The City Attorney didn't feel that it was necessary since the board is advisory to the city council. PUBLIC HEARING Nick Kartheiser — 288 1st Avenue WN said even with the proposal to drop the buffer to 150 feet it still is within his residential area. He is the only resident in the entire block and they share a property line Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 2 of 11 with this proposed business. He is opposed to the reduction of the buffer area. Clark asked if Mr. Kartheiser's property is within 150 feet and Conrad said their property is a residence in a B-3 (Community Business) zone and not a residential zone. The zoning ordinance sites "city residential zones" not whether or not there is a residence within the business zone. No one else wished to speak and the public hearing was closed. MOTION Schutt moved and Hinchey seconded a motion to adopt the findings in staff report #KZTA-10-02 and recommend to the Kalispell City Council that the proposed amendments be adopted per the draft ordinance submitted. BOARD DISCUSSION Hull said he has a problem with this text amendment. They subdivided the building, which to his knowledge hasn't been done before, in order to meet the 300 foot buffer from a residential zone and the other examples that were cited the buffer was measured from the edge of the building. Hull said regarding the Hilton Garden Inn the issue was a park and the board insisted the casino be played down. This is a casino only and this town has a problem where the casinos are taking up all of the liquor licenses and that's why Kalispell can't attract major restaurant chains such as Outback Steakhouse or Olive Garden. Hull added he was opposed to the Town Pump casino proposal at Four Corners because it had a county zoned residential area next to it. Conrad noted the zoning text cites "city" residential zones not county residential zones. Clark said he believes they have to stop any erosion of the regulations. If they keep reducing the 300 foot buffer there will be no end to it. Clark added when the regulations were adopted the city council didn't like the proliferation of casinos and this was their way to slow them down. He is against the text amendment. Clark noted they still have their liquor license and can move it to another location that conforms to the buffer requirements. Graham said he agrees with Mr. Clark. Graham asked if there have been any other casinos that have been denied because they were within the 300 foot buffer zone and Conrad said not that he knows. There was discussion regarding areas in the city that would be open for another casino. Schutt said he was opposed to the buffer area when it was proposed and he noted Whitefish has limited casinos to a certain part of Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 3 of 11 town. He doesn't like that the city is being asked to rewrite a law for one situation. Hinchey said unfortunately Kalispell doesn't have casinos limited to one area, so that ship has sailed. ROLL The motion failed unanimously on a roll call vote. BOARD DISCUSSION — Schutt said the reasons for the amendment are not substantive FINDINGS enough to change the current regulations. The proposed casino would not be an accessory use; there would be no signage and entrance restrictions; and the amendment would apply to a single situation. Hinchey and Clark added the proposal violates the current ordinance. Jentz suggested the findings could include: • The board is comfortable with the current policy in keeping a 300 foot separation between casinos • They are concerned with creating a greater concentration of casinos which would change the character of the city • The impacts to the other businesses and neighborhoods City Attorney, Charlie Harball said there is a current city policy that was put in place some time ago where findings were made on why the city adopted the 300 foot separation from other casinos. If the board agrees with the current policy they should state that. Hull said casinos deal with a minority of the public, are not something they want to encourage unless they are for example an accessory use to a restaurant. Graham said having the 300 foot buffer zone around casinos will regulate the number of casinos that actually come into the city. He added how many casinos would the city be comfortable with? By changing the buffer to 150 feet casinos would be all over the place which he feels would not be the intent of those council members who approved the regulation. Conrad said the text amendment will affect where the casinos will be located but will not affect the number of them. He added the number of casinos is determined by the number of liquor licenses in the city and there is also a provision that a casino can be located within 300 feet of another casino, park, school or residentially zoned area if it is a minor accessory use such as was approved at the Hilton Garden Inn and the Montana Club. MOTION TO DENY TEXT Hinchey moved and Graham seconded a motion that the Kalispell AMENDMENT City Planning Board & Zoning Commission recommend to the Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 4 of 11 Kalispell City Council that text amendment KZTA-10-02 be denied based on the discussion above and findings noted as follows: • The board is comfortable with the current policy in keeping a 300 foot separation between casinos • They are concerned with creating a greater concentration of casinos which would change the character of the city • The impacts to the other businesses and neighborhoods ROLL CALL The motion passed unanimously on a roll call vote. CONDITIONAL USE PERMIT A request by Parkwood Plaza LLC & NWMT Holdings, LLC for a - CASINO conditional use permit to operate a casino in the B-3 (Community Business) zoning district. The casino would occupy the southern third of an existing building located at the northeast corner of the intersection of West Idaho Street and 2nd Avenue WN. The property is located at 135 W Idaho Street. The previous tenant in this space was Quizno's sandwich shop. STAFF REPORT KCU-10-01 Sean Conrad, representing the Kalispell Planning Department, reviewed staff report KCU-10-01. Conrad provided the location of the proposed casino. He also noted the location of Mr. Kartheiser's home and mentioned the zoning on that property is B-3 (Community Business). The proposed location of the casino is at the southern end of an existing building where the Quizno's sub sandwich was previously located. The proposed location is within 300 feet of a residential zone and within 300 feet of another casino. To overcome the 300 foot restriction from a residential zone the owners proposed a subdivision to split the property to take it just outside of 300 foot buffer from a residential zone to the north. However, they are still within 300 feet of another casino. Conrad reviewed the proposed signage and location of the signs. Conrad noted condition #2 of the recommended conditions of approval states that the text amendment must be approved to reduce the buffer area prior to opening and operation of the casino. Conrad said, the board has just voted to recommend denial of the text amendment. Staff recommended the board hold the public hearing on the conditional use permit application and then table the discussion until April 13, 2010. By that time the city council will have had an opportunity to act on the text amendment. APPLICANT/TECHNICAL Dawn Marquardt, Marquardt & Marquardt Surveying said she SUPPORT represents the owners and applicant if the board has questions. PUBLIC HEARING Nick Kartheiser, 288 1st Avenue WN said he is very much opposed Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 5 of 11 to the conditional use permit for a casino at this location. They will be bringing a liquor license from their current facility into this area. The access is very limited to this site and the large volume of traffic from both Highway 93 and Highway 2 creates a safety issue. He said the other problem is most of the businesses around them currently close by 10:00 pm and this business would potentially be open until 2:00 am which could create problems with theft and the traffic that will be generated in his alley. He added he already has problems with snow removal. Kartheiser disagreed with the number of parking spaces available for 3 different businesses in the lot he doesn't feel there are enough. David J. Walker, 1405 Whalebone Drive, Kalispell had the following comments: • A busy 4 lane highway is a substantial barrier • There are only a certain amount of liquor licenses available which will limit the number of casinos in city limits • They are moving an existing casino not creating a new one. • Measuring the distance from entrance to entrance instead of property line to property line seems more practical • Casino locations are limited by availability of buildings and open land to build within the city • He disagreed with the access issues that were raised and would like to see the statistics that show the access is a safety problem • Snow removal issues should be taken up with the owner of the property. Judy Anderson, owner of the Silverado Casino stated their casino is not open until 2:00 am they usually close around 11:00 pm. She also said in the 20 years they have operated the casino they have never had an incident involving alcohol. She doesn't think casinos are a bad business and their customers are not the type who would cause problems in the neighborhood. Jan Kartheiser said she is not against the casinos but her main concern is noise at late hours. The current location of the Silverado has access to 2 highways but the access at this location is limited. The alley is tiny and there is no place to put snow or handle a lot of traffic. Terry Anderson, owner of the Silverado Casino stated casino customers are different than restaurant customers and the amount of traffic will be minimal compared to a restaurant. Over drinking is not a problem because it is easy to monitor. MOTION Hull moved and Clark seconded a motion to table the conditional use permit until April 13, 2010. Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 6 of 11 ROLL CALL The motion passed unanimously on a roll call vote. TEXT AMENDMENT — A request by the City of Kalispell to consider adding medical MEDICAL MARIJUANA marijuana businesses and potential location and other restrictions on such businesses in the city's zoning ordinance. The planning board's recommendation on medical marijuana businesses was requested by the city council at its February 16th meeting at which the city council also placed a 90 day moratorium on medical marijuana businesses establishing in city limits. STAFF REPORT Tom Jentz, representing the Kalispell Planning Department reviewed the staff memo and materials for the board. Jentz said this is a request from the city council to address the sale of medical marijuana. Jentz pointed out they are not debating the use of marijuana by individuals but merely the locations and sale of medical marijuana. Jentz noted on February 16, 2010 the Kalispell City Council declared an emergency ordinance and approved a moratorium on new or expansion of existing medical marijuana sales sites within the City of Kalispell. This decision was prompted by the location of a medical marijuana sales facility across the street from Woodland Park and very close to a school. The neighborhood came forward with several concerns and council directed the planning board to discuss the issue and hold a public hearing. Jentz said when the moratorium was passed there were 3 medical marijuana facilities operating in Kalispell. No matter what the board decides those facilities will continue to function and are protected because they existed legally before any rule or regulation came forward. Jentz continued this issue is now being addressed in most of the cities in Montana. Some have chosen to not regulate them, and others approved moratoriums and have been discussing the issue in depth. Jentz reviewed the neighborhood concerns which include: suggestive signage; sending a mixed message to our youth; locating stores next to a schools, churches, parks or residential areas; operation of stores on Main Street; and sending a mixed message to a traveling public who come to a family friendly town; potential for increased crime or break-ins; growing operations in stable neighborhoods; and increased advertising and marketing. Jentz said the following options are before the board: • Allow medical marijuana retail stores throughout Kalispell • Exclude medical marijuana sales from the city Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 7 of 11 • Allow medical marijuana sales within Kalispell by a conditional use permit • Allow medical marijuana as a home occupation PUBLIC HEARING Dave Mumby, 537 5t Avenue West said because this is an industry that is in its infancy the 90 day moratorium is not unreasonable and a good move by the council. Mumby said his recommendation would be until the city can come up with rules that are specific to medical marijuana why doesn't the city council adopt the rules and laws that pertain to alcohol. That way there is a set of laws and regulations to work from and they can be adjusted to apply to medical marijuana. Lorraine Clark, 710 '/2 - 2nd Avenue East said she agrees with Mr. Mumby. The alcohol laws are fairly stringent and they require people to be responsible. Clark continued if the facility goes through the process and can demonstrate it is a very nice facility there is no reason why it can't be operating downtown. No one else wished to speak and the public hearing was closed. MOTION Clark moved and Hinchey seconded a motion to recommend to the Kalispell City Council that they adopt Option B — "Exclude medical marijuana sales from the city" and specifically amend the Kalispell City Zoning Ordinance to read as follows: "Any use, category of use or accessory use provided for in this ordinance which is in conflict with any other local, state or federal laws is hereby prohibited." BOARD DISCUSSION Clark said he believes allowing medical marijuana shops in Kalispell will adversely affect tourism which is of major importance. If Kalispell becomes known as the marijuana capital of the northwest it won't do a lot for the city. Clark added if the Federal government decides to legitimize marijuana in the future then the board can rethink their recommendation. Graham said he agrees with Clark and said marijuana is a controlled substance and against Federal law. He said as far as the zoning he doesn't think that there are many business owners who are going to want this type of business operating next to them. Hull said this issue was passed by the voters and was supposed to be a low-key business used for very specific uses. Hull added they need to keep it that way. He supports the motion to ban the retail shops in Kalispell but still allow caregivers the opportunity to provide marijuana to their patients. He said this should be closely and carefully regulated. Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 8 of 11 Mendius said the voters of Montana passed Initiative Measure No. 148 and accepted medical marijuana usage. Mendius said there has been some trepidation over the tug of war about Federal applicability and State applicability and in answer to that he quoted the M.C.A. Section 30-1-301: "Territorial applicability --parties power to choose applicable law. (1) Except as otherwise provided in this section, when a transaction bears a reasonable relation to this state and also to another state or nation, the parties may agree that the law either of this state or of the other state or nation shall govern their rights and duties. Mendius said he personally doesn't have a problem with medical marijuana clinics. He said he agrees with the suggestion that the city might apply alcohol laws to medical marijuana usage and he suggested having a set number of medical marijuana licenses. Hinchey said the voters did approve the initiative for medical marijuana but the facts and statistics are indicating the law is being abused. Hinchey said he wants to go on record saying he reviewed all the written comments that were turned in and every one of the letters were in opposition of the shops. Hinchey also has a problem with the fact the city would be violating Federal law and that is the reason he will vote in favor of banning medical marijuana shops in the city. Schutt said he will vote against the motion for the following reasons: The board is ignoring the will of the voters; rejecting the law; and it would set the city up for law suits. Schutt said if we are going to minimize the harmful effects to property you don't turn your back on it and hope it goes away because it will go to Evergreen, Kila or Somers or a dispensary would set up in one of the wholly surrounded islands and the city would have lost all opportunities to regulate it. He agrees using the alcohol model would be a good start and then regulate the heck out of it - no minors on site, no consumption on site, limited signage, and limit locations and then weed out the bad apples. Schutt continued the other concern with a blanket ban is they are only talking about retail sales and the caregivers will still be operating. Jentz agreed that if the board adopts the ban caregivers will still be operating; the 3 grandfathered businesses will still be operating, as long as they comply with state law; and a person with a medical marijuana card who is growing 6 plants for their own use would be allowed. He added the will of the people was to allow medical marijuana to be used but it didn't mention Main Street retail sales. Clark said he disagrees with the comments made by Schutt and he Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 9 of 11 added he feels it would be a disaster for the tourism industry. Clark added Richard Griffin, although not in attendance, told him he is in total support of banning medical marijuana retail shops in Kalispell. There was discussion regarding the effects on Federal funding; whether or not to allow medical marijuana as a home business; and enforcement problems. Jentz said the board could vote to specifically mention that medical marijuana is not allowed as a home occupation and they could put limits on signage. Jentz noted one of the planning board members asked that language be put together for tonight's discussion which specifically addresses amendments to the home occupation section. MOTION — AMENDMENT TO Hull moved and Clark seconded a motion to adopt the amendments THE ORIGINAL MOTION to Section 27.22.160 Home Occupation that home occupations would not include: "medical marijuana growing, sales, or consumption, or the sale of any related goods and or services including, but not limited to paraphernalia;" ROLL CALL — AMENDMENT The motion passed on a roll call vote of 5 in favor and 1 opposed. BOARD DISCUSSION Hull brought up the sign issue and whether sign restrictions should be adopted and Sorensen said they are existing businesses and the city's standard sign regulations would apply. ROLL CALL — ORIGINAL The original motion, as amended, passed on a roll call vote of 4 in MOTION favor and 2 opposed. OLD BUSINESS: Jentz reported there will be a work session on March 23 rd and the agenda will include the city's annexation policy; Bloomstone Amended PUD; and possibly Willow Creek's Amended Preliminary Plat and PUD. NEW BUSINESS: None. ADJOURNMENT The meeting adjourned at approximately 9:30 p.m. NEXT MEETING The next regular meeting of the Kalispell City Planning Board and Zoning Commission is scheduled for April 13, 2010 at 7:00 p.m. in the Kalispell City Council Chambers located at 201 First Avenue East in Kalispell. The next work session of the Kalispell City Planning Board and Zoning Commission is scheduled for Tuesday, March 23, 2010, at Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 10 of 11 7:00 p.m. in the Kalispell City Council Chambers located at 201 First Avenue East in Kalispell. /s/Bryan H. Schutt Bryan H. Schutt President APPROVED as submitted/corrected: 05/11/10 /s/Michelle Anderson Michelle Anderson Recording Secretary Kalispell City Planning Board Minutes of the meeting of March 9, 2010 Page 11 of 11