REPORT TO THE PLANNING COMMISSION January 4, 2023 FROM: ISRAEL TREJO, Planning Manager Planning and Development Department BY: ROB HOLT, Planner III Planning and Development Department SUBJECT ..Title Consideration of Cannabis Conditional Use Permit Application No. P22-01549, and related Environmental Assessment No. P22-01549, pertaining to approximately 1.41 acres of property located on the south side of East Herndon Avenue between North Willow and North Chestnut Avenues (Council District 6). 1. ADOPT Environmental Assessment No. P22-01549 dated October 11, 2022, a determination that the proposed project is exempt from the California Environmental Quality Act (CEQA) through a Class 1 Categorical Exemption and 2. APPROVE Cannabis Conditional Use Permit Application P22-01549 proposing to establish a cannabis retail business within an existing approximately 2,516 sq. ft. commercial tenant suite, subject to compliance with the Conditions of Approval dated January 4, 2023. ..Body EXECUTIVE SUMMARY Cannabis Conditional Use Permit Application No. P22-01549 was filed by Cyrus Pai of Authentic Fresno Willow LLC and pertains to approximately 1.41 acres located at 6929 North Willow Avenue, Suite 103. The applicant proposes to establish a cannabis retail business in an existing approximately 2,516 sq. ft. commercial tenant suite. The subject property is located in the CC/EA/Cz (Commercial - Community/Expressway Area Overlay/conditions of zoning) zone district. Pursuant to Table 15-1202 of the Fresno Municipal Code (FMC), a cannabis retail business is permitted in the CC zone district with an approved Cannabis Conditional Use Permit, in accordance with Fresno Municipal Code (FMC) Sections 15-2739.B and N (Location and Design of Cannabis Retail Businesses; Cannabis Conditional Use Permit). The Planning Commission is considering this project due to existing conditions of zoning tied to the property which requires review and approval of all conditional use permits by the City of Fresno Planning Commission. BACKGROUND The subject property is currently within an existing commercial shopping center. Adjacent uses include a Honda automotive dealer and parts store to the east, vacant commercial land to the north, commercial retail uses to the south and single-family residences to the west. The request to establish a cannabis retail business is consistent with the Fresno General Plan, Hoover Community Plan, and the Commercial - Community planned land use designation. Cannabis retail businesses are permitted uses, subject to approval of a Cannabis Conditional Use Permit, in accordance with FMC Sections 12-2739.B and N (Location and Design of Cannabis Retail Business; Cannabis Conditional Use Permit). The applicant proposes the establishment of a cannabis retail business within an approximately 2,516 sq. ft. existing commercial tenant suite. The existing site is within a developed shopping center that includes an existing parking lot, landscaping, and solid waste enclosure to serve the proposed business. The business proposes to operate between the hours of 9:00 a.m. and 10:00 p.m., seven days per week. The business will generate minimal amounts of cannabis waste consisting of returned or defective products. All cannabis waste will be securely stored within the premises in a locked container in a limited access area. Cannabis waste will be destroyed and rendered unusable and unrecognizable before disposal pursuant to 16 � CCR 5054. All cannabis businesses can only obtain their Commercial Cannabis Business after they have received approval of a Cannabis Conditional Use Permit, sign-off from the Project Manager of the Office of Cannabis Oversight (including final inspection and final Building Permits), approval from the State, then final sign-off and approval from the City Manager. Once the City Manager approves the Commercial Cannabis Business, that becomes the "effective date." The Commercial Cannabis Business Permit application process is a separate process from the Cannabis Conditional Use Permit application process. A Notice of Intent to Take Action (NOITTA) for Cannabis Conditional Use Permit Application No. P22-01549 was mailed on November 2, 2022, with a due date for comments to be submitted by no later than close of business on November 14, 2022. Staff received two emails in opposition, one of which includes an attached letter in opposition that was copied and received six signatures (Exhibits J and K). Based upon the existing conditions of zoning tied to the property, a conditional use permit application shall be subject to review by the City of Fresno Planning Commission. Conditions of Zoning A Statement of Covenants Affecting Land Development was recorded on the subject property, pursuant to the requirements of Rezone Application No. R-93-21 as approved by the Fresno City Council on November 2, 1993, under Ordinance No. 93-50 (Exhibit L). The Ordinance specified four conditions of zoning, all of which are to be complied with as part of the project. The conditions of zoning are as follows: 1. The site plan review or conditional use permit for the project area shall be subject to a public hearing before the Planning Commission. 2. Notices for this public hearing shall be mailed to all property owners in a 350-foot radius of the project area and to the signatories of the petition related to neighborhood concerns of R-90-36. 3. Access to and from the project area from East Fremont Avenue shall be prohibited. 4. A seven-foot solid masonry wall between the subject property and the residential properties to the west and south shall be required. Said wall is also to include a landscape cover on its east and north sides to prevent graffiti. Based upon the existing conditions of zoning tied to the property, a conditional use permit application shall be subject to review by the City of Fresno Planning Commission. Cannabis Conditional Use Permit Application No. P22-01549 has been determined to meet the applicable conditions of zoning for the subject parcel outlined in Ordinance No. 93-50. Neighborhood Responsibility Plan The applicant submitted a Neighborhood Responsibility Plan (Exhibit G) that indicates the business, and its operating characteristics are not detrimental to the public health, safety, convenience, or welfare of persons residing, working, visiting, or recreating in the surrounding neighborhood and will not result in the creation of a nuisance. Within the applicant's Neighborhood Responsibility Plan ("Plan"), the business, as a first step to building a relationship with their neighbors, held a virtual open house on September 3, 2020, inviting all neighbors within 1,000 feet of the business' location to participate. If their Commercial Cannabis Business Permit is final, they intend to host another open house approximately four weeks prior to opening to listen to concerns from the neighboring residents and businesses. To ensure that sound is not detectable outside of the business, exterior speakers will not be utilized, music will not be played inside more than 50 decibels at any time, windows and doors will not be left open during operating hours, soundproofing will be installed within the interior of the building, events will not be hosted for large crowds, and security will verify no detectable noise outside of the premises. To ensure that light is not excessive, obtrusive, or misdirected, the business will not illuminate its interior premises when it is closed outside of lighting required for security operations and shielded lighting will be utilized on the exterior of the premises. To ensure odors are controlled, the business will install a carbon filter to purify the air, utilize a negative air pressure system that will disburse air only after it has been cleaned by the carbon filtration system, and the business will only accept and sell pre-packaged cannabis goods. The business will utilize a comprehensive complaint resolution procedure that includes complaint responses for noise, light, odor, litter, and traffic. Streets and Access Points Vehicle Miles Traveled (VMT) Senate Bill (SB) 743 requires that relevant CEQA analysis of transportation impacts be conducted using a metric known as Vehicle Miles Traveled (VMT) instead of Level of Service (LOS). VMT measures how much actual auto travel (additional miles driven) a proposed project would create on California roads. If the project adds excessive car travel onto our roads, the project may cause a significant transportation impact. The State CEQA Guidelines were amended to implement SB 743, by adding Section 15064.3. Among its provisions, Section 15064.3 confirms that, except with respect to transportation projects, a project's effect on automobile delay shall not constitute a significant environmental impact. Therefore, LOS measures of impacts on traffic facilities are no longer a relevant CEQA criteria for transportation impacts. CEQA Guidelines Section 15064.3(b)(4) states that "[a] lead agency has discretion to evaluate a project's vehicle miles traveled, including whether to express the change in absolute terms, per capita, per household or in any other measure. A lead agency may use models to estimate a project's vehicle miles traveled and may revise those estimates to reflect professional judgement based on substantial evidence. Any assumptions used to estimate vehicle miles traveled and any revision to model outputs should be documented and explained in the environmental document prepared for the project. The standard adequacy in Section 15151 shall apply to the analysis described in this section." On June 25, 2020, the City of Fresno adopted CEQA Guidelines for Vehicle Miles Traveled Thresholds, pursuant to Senate Bill 743 to be effective of July 1, 2020. The thresholds described therein are referred to herein as the City of Fresno VMT Thresholds. The City of Fresno VMT Thresholds document was prepared and adopted consistent with the requirements of CEQA Guidelines Sections 15064.3 and 15064.7. The December 2018 Technical Advisory on Evaluating Transportation Impacts in CEQA (Technical Advisory) published by the Governor's Office of Planning and Research (OPR), was utilized as a reference and guidance document in the preparation of the City of Fresno VMT Thresholds. The City of Fresno VMT Thresholds adopted a screening standard and criteria that can be used to screen out qualified projects that meet the adopted criteria from needing to prepare a detailed VMT analysis. The City of Fresno VMT Thresholds Section 3.0 regarding Project Screening discusses a variety of projects that may be screened out of a VMT analysis including specific development and transportation projects. For development projects, conditions may exist that would presume that a development project has a less than significant impact. These may be size, location, proximity to transit, or trip making potential. The following eligible screening criteria of the City of Fresno VMT Thresholds Section 3.0 apply to the proposed project: * The project involves local-serving retail space of less than 50,000 sq. ft. The proposed project is eligible to screen out because it is a local-serving retail space of less than 50,000 sq. ft. Other Agencies All comments received from the applicable agencies have been incorporated into the conditions of approval for Cannabis Conditional Use Permit Application P22-01549 (Exhibit D). The project will comply with all zoning requirements including setbacks, landscaping, and parking requirements, as incorporated into the conditions of approval dated January 4, 2023. Council District Project Review Committee The Council District 6 Project Review Committee reviewed this project on July 18, 2022 and voted to recommend approval with no additional comments and/or recommendations. Motion passed by a vote of 6-0. Notice of Planning Commission Hearing The Planning and Development Department mailed notices of this Planning Commission hearing to all surrounding property owners within 1,000 feet of the subject property, pursuant to Section 15-5007 of the FMC (Exhibit B). Additionally, staff cross-referenced the petition signatories' addresses (Exhibit B), as indicated in Condition No. 2 of Ordinance No. 93-50, with the 1,000-foot radius of the public hearing notice and added three additional addresses not already provided within the 1,000-foot buffer. Analysis of the Correspondence Received Staff received one e-mail and one e-mail with an attached letter that was copied with six signatures in opposition of the project (Exhibits J and K), in response to the Notice of Intent to Take Action mailed for the project. Staff has reviewed the e-mails and letter in opposition to the project and provide a responsive analysis of each. (1) Below is an analysis of the issue raised in the e-mail dated November 8, 2022 (Exhibit J). Issue #1: A previous smoke shop in the subject tenant suite created loud noise and cannabis shop should not be in the vicinity of a residential area where there are other empty shopping centers available that do not back to residential properties. Staff Response: Pursuant to FMC Section 15-2506 and the Conditions of Approval dated January 4, 2023 (Exhibit D), the proposed cannabis retail business will be required to have noise decibel levels that comply with all applicable Noise Standards. Furthermore, their Neighborhood Responsibility Plan, as described above, provides details on how the business plans to ensure noise is not a nuisance to nearby residents and businesses. The only required cannabis retail business location limitations pursuant to FMC Section 15-2739.B are at least 800 feet from another cannabis retail business, a school providing instruction for any grades pre-school through 12 (whether public, private, or charter, including pre-school, transitional kindergarten, and K-12), a day care center licensed by the state Department of Social Services that is in existence at the time a complete commercial cannabis business permit application is submitted, and a youth center that is in existence at the time a complete commercial cannabis business permit application is submitted. Residences are not included as one of the location limitation requirements. (2) Below is an analysis of the issues raised in the letter dated November 14, 2022 (Exhibit K). Issue #1: Researchers at the University of Colorado Denver conducted a study which appears in Justice Quarterly, a publication of the Academy of Criminal Justice Sciences, and reported the following statistics, "We found that neighborhoods with one or more medical recreational dispensary saw increased crime rates that were between 26 and 1,452 percent higher than in neighborhoods without any commercial marijuana activity." Measures of crime and disorder were drawn from the Denver Police Department and included aggravated assault, auto theft, burglary, drug and alcohol offenses, murder, public disorder, robbery, and theft from a car. Based on these statistics, it is anticipated that the surrounding property values would lower, and crimes against vulnerable populations (such as children and the elderly) and noise pollution would increase. Other less noticeable challenges may include increased vehicular traffic on local streets and the open sell of other narcotics influenced by the dispensary within the neighborhood. Staff Response: Pursuant to FMC Section 9-3310.b and the Police Department memorandum dated June 21, 2022, the cannabis retail business will be required to install and provide necessary security requirements (including a vault, security cameras, and security personnel) sufficient to ensure protection of the health, safety, and welfare of the residents of the city. Furthermore, the applicant provided a Security Plan (Exhibit H) that details the business will contract with an experienced cannabis third-party security guard provider who will staff at least two-armed uniformed security guards during operating hours and at least one-armed uniformed security guard during off-hours. The security service will also provide 24-hour dispatch in the event additional security guards are needed during an emergency. Land Use Plans and Policies The project is consistent with the following Fresno General Plan goals and objectives related to land use and the urban form: * Increase opportunity, economic development, business, and job creation. * Provide for a diversity of districts, neighborhoods, housing types (including affordable housing), residential densities, job opportunities, recreation, open space, and educational venues that appeal to a broad range of people throughout the city. The establishment of a cannabis retail business in an existing commercial tenant suite would cumulatively result in the creation of jobs, job growth, and opportunity for residents. These goals contribute to the establishment of a comprehensive citywide land use planning strategy to meet economic development objectives and achieve efficient and equitable use of resources and infrastructure in accordance with Objective LU-1 of the Fresno General Plan. Objective ED-1: Support economic development by maintaining a strong working relationship with the business community and improving the business climate for current and future businesses. Objective ED-4: Cultivate a skilled, educated, and well-trained workforce by increasing educational attainment and the relevant job skill levels in order to appeal to local and non-local businesses. Objective LU-6: Retain and enhance existing commercial areas to strengthen Fresno's economic base and site new office, retail, and lodging use districts to serve neighborhoods and regional visitors. The proposed cannabis retail business will utilize existing land where the necessary infrastructure and facilities are available to serve the property. The proposed project is consistent with many of the goals and policies of the Fresno General Plan. The proposed project promotes diverse land uses and preserves and protects resources by developing within the city limits. Therefore, it is staff's opinion that the proposed project is consistent with respective general and community plan objectives and policies as supported by the above-described General Plan goals, policies, and objectives, and will not conflict with any applicable land use plan, policy, or regulation of the City of Fresno. Hoover Community Plan Upon reviewing the policies contained in the Hoover Community Plan, staff has determined that there are no policies that are applicable or are more restrictive than those contained in the FMC or the Fresno General Plan. ENVIRONMENTAL FINDINGS Environmental Impact Report (EIR) State Clearinghouse No. (SCH) 2019070123 was prepared for cannabis uses in the City of Fresno. EIR SCH No. 2019070123 was certified by the City Council on September 24, 2020. The EIR included mitigation measures that all future cannabis businesses in the City of Fresno are required to comply with and are conditioned as a component of all Cannabis CUP approvals. The California Environmental Quality Act (CEQA), Public Resources Code Section 2100 et seq., permits a public agency to determine whether a particular project is exempt from CEQA. A determination of a Categorical Exemption from Section 15301/Class 1 of the CEQA Guidelines was made and Environmental Assessment No. P22-01549 was completed for this project on October 11, 2022 (Exhibit I). Section 15301/Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features involving negligible or no expansion of existing or former use. The proposed project is the establishment of a cannabis retail business in an existing approximately 2,516 sq. ft. commercial tenant suite within a developed commercial shopping center that will only consist of minor interior tenant improvements to support the cannabis retail business. The proposed cannabis retail business does not involve any expansion of the building and only proposes to utilize the existing commercial tenant suite. The project will also be required to comply with the mitigation measures of the Cannabis Final Environmental Impact Report (EIR) SCH No. 201907023. The City of Fresno VMT Thresholds adopted a screening standard and criteria that can be used to screen out qualified projects that meet the adopted criteria from needing to prepare a detailed VMT analysis. The City of Fresno VMT Thresholds Section 3.0 regarding Project Screening discusses a variety of projects that may be screened out of a VMT analysis including specific development and transportation projects. For development projects, conditions may exist that would presume that a development project has a less than significant impact. These may be size, location, proximity to transit, or trip making potential. The proposed project is eligible to screen out because it is a local-serving retail space of less than 50,000 sq. ft. None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to this project. Furthermore, as the subject site is a developed property in an urbanized commercial area, the proposed project is not expected to have a significant effect on the environment. FRESNO MUNICIPAL CODE FINDINGS Based upon analysis of the application, staff concludes that the required findings contained within Section 15-5306 of the FMC can be made. These findings are attached as Exhibit C. CONCLUSION The appropriateness of the proposed project has been examined with respect to its consistency with goals and policies of the Fresno General Plan and the Hoover Community Plan; compliance with the provisions of the FMC; its compatibility with surrounding existing or proposed uses; and its avoidance or mitigation of potentially significant adverse environmental impacts. These factors have been evaluated as described above and by the accompanying environmental assessment and exhibits. Upon consideration of this evaluation, it can be concluded that Conditional Use Permit Application No. P22-01549 is appropriate for the project site. ATTACHMENTS: Exhibit A - Aerial Map Exhibit B - Public Hearing Notice Map & Petition Signatures Exhibit C - Fresno Municipal Code Findings Exhibit D - Conditions of Approval for Cannabis CUP Application P22-01549 [1/4/23] Exhibit E - Operational Statement [6/15/22] Exhibit F - Site Plan & Floor Plan [10/18/22] Exhibit G - Neighborhood Responsibility Plan [6/15/22] Exhibit H - Security Plan [June 15, 2022] Exhibit I - Environmental Assessment P22-01549 [10/11/22] Exhibit J - E-mail [11/8/22] Exhibit K - E-mail & Attached Letter [11/14/22] Exhibit L - Ordinance 93-50 & Statement of Covenants Affecting Land Dev.