REPORT TO THE PLANNING COMMISSION November 2, 2022 FROM: ISRAEL TREJO, Planning Manager Planning and Development Department BY: ROB HOLT, Planner III Planning and Development Department SUBJECT ..Title Consideration of an appeal filed regarding Cannabis Conditional Use Permit Application No. P22-01492 and related Environmental Assessment for property located at 1704 East Belmont Avenue on the southeast corner of East Belmont and North Blackstone Avenues (Council District 3). 1. APPROVE Environmental Assessment No. P22-01492 dated August 1, 2022, a determination that the proposed project is exempt from the California Environmental Quality Act (CEQA) Guidelines through a Section 15301/Class 1 Categorical Exemption. 2. DENY the appeal and UPHOLD the action of the Planning and Development Department Director in the approval of Cannabis Conditional Use Permit Application No. P22-01492 authorizing the establishment of a cannabis retail business in an approximately 4,645 sq. ft. existing commercial building, subject to the following: a. Development shall take place in accordance with the Conditions of Approval for Cannabis Conditional Use Permit Application No. P22-01492 dated September 20, 2022. ..Body EXECUTIVE SUMMARY Cannabis Conditional Use Permit Application No. P22-01492 was filed by Joe Velazquez of Haven and pertains to an approximately 0.41-acre parcel located at 1704 East Belmont Avenue. The applicant proposes the establishment of a cannabis retail business within an approximately 4,645 sq. ft. existing commercial building. On September 20, 2022, the Planning and Development Director approved Cannabis Conditional Use Permit Application No. P22-01492 based upon the project's compliance with the required findings for Conditional Use Permits pursuant to Fresno Municipal Code (FMC) Sections 15-2739-R and 15-5306 (Exhibit D). A Notice of Action was posted with the Fresno City Clerk on September 20, 2022. On October 4, 2022, Councilmember Miguel Arias, District 3, filed an appeal of the Director's decision (Exhibit B). Staff recommends upholding the Director's approval based on substantial evidence in this staff report that shows the cannabis retail business is a permitted use in the CMX (Corridor/Center Mixed Use) zone district, compliant with all provisions of the Citywide Development Code, and consistent with applicable policies of the Fresno General Plan and Downtown Neighborhoods Community Plan. BACKGROUND The subject property is located within an area that has been significantly developed with commercial retail development to the north and east. Immediately west of the subject property include office development with primarily single-family development to the southwest. Immediately south of the subject property are various single-family and multi-family uses. The request to establish a cannabis retail business is consistent with the Fresno General Plan, Downtown Neighborhoods Community Plan, and the Corridor/Center Mixed-Use planned land use designation. Cannabis retail businesses are permitted uses, subject to approval of a Cannabis Conditional Use Permit, in accordance with FMC Sections 15-2739.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 4,645 sq. ft. existing commercial building. The project also proposes a parking lot refresh, trash enclosure, upgraded building exterior and new landscaping. The business proposes to operate between the hours of 8:00 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 Permit 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 of California, then final sign-off and approval from the City Manager. Once the City Manager approves the Commercial Cannabis Business Permit, that becomes the "effective date." The Commercial Cannabis Business Permit application process is a separate process from the Cannabis Conditional Use Permit application process. For informational purposes, staff has provided the Commercial Cannabis Business Permit application submittals, which includes one public comment, as included within Exhibit K. A Notice of Intent to Take Action (NOITTA) for Conditional Use Permit Application No. P22-01492 was mailed on August 23, 2022 with a due date for comments to be submitted by no later than close of business on September 1, 2022. Staff received four emails in support of the project (Exhibit L). Revision to FMC Section 9-3307(b) FMC Section 9-3307(b) was revised on April 28, 2022 to state, "Cannabis retail businesses shall be dispersed evenly by Council District. If changes to Council District boundaries create an un-even distribution, existing cannabis retail businesses shall be allowed to remain and subsequent cannabis retail businesses approved by the City Manager shall create even distribution by Council District." Council District boundaries were recently changed in December of 2021. The subject property moved from Council District 7 to Council District 3. This change does not result in an excess of cannabis retail businesses in Council District 3. Pursuant to FMC Section 9-3307(b), 3 cannabis retailers are allowed per Council District. Neighborhood Responsibility Plan The applicant submitted a Neighborhood Responsibility Plan (Exhibit J) 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 intends to partner with other surrounding businesses, including food service and automobile repair businesses, that will help provide meals for the business' staff and exchange of discounts between the cannabis retail business and other surrounding businesses. The Plan also includes a complaint management plan that will help increase response time to any potential concerns related to noise, light, odors, and excess traffic. There will be a designated community liaison to serve as the direct point of contact for the residents, city staff, and law enforcement. The Plan also includes a community relations plan that will address how the cannabis retail business will communicate as a business with the community, including a schedule of discussions with the members of the community, raising awareness of the cannabis retail business and values among community members, and media outlets to promote the cannabis retail business. The Plan indicates outreach to the community will include the City Council, Planning Department, Police Department, and School District. The Plan also indicates that once the cannabis retail business receives their license, they will process a letter campaign to all business and residences within 1,000 feet of the business, perform door-to-door canvassing to meet nearby businesses and neighbors, host a community outreach public meeting, conduct two community surveys each year to receive input from the community, send monthly newsletters regarding the business and upcoming community involvement opportunities, and the implementation of a youth education and use prevention plan. The Plan includes details on the 24-hour on-site management of the business with video surveillance for security, noise control, lighting, odor control, litter, and ensuring no access from minors. The Plan's details on the business and its operating characteristics does not identify any detriment 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. 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 is located within 0.5 miles of a Transit Priority Area or a High-Quality Transit Area, as designated in the transit priority areas and high-quality transit areas map (Figure 4) of the City of Fresno VMT Thresholds Section 3.0. * The project is located within an area with low VMT, as designated in the screening map for residential uses (Figure 6) in the City of Fresno VMT Thresholds Section 3.0. These low VMT areas were calculated using Fresno County as the region. The Fresno County average VMT per capita is 16.10. The proposed project is eligible to screen out because it is located within 0.5 miles of a Transit Priority Area or a High-Quality Transit Area, as designated in Figure 4 of the City of Fresno VMT Thresholds Section 3.0 and is located within an area with low VMT, as designated in Figure 6 of the City of Fresno VMT Thresholds Section 3.0. Council District Project Review Committee The Council District 3 Project Review Committee reviewed the proposed project at their regular meeting on July 26, 2022, and voted to recommend approval of the project, 2 votes to 1. Notice of Planning Commission Hearing The Planning and Development Department mailed notices of this Planning Commission hearing to all surrounding property owners within 1000 feet of the subject property, pursuant to Section 15-5007 of the FMC (Exhibit D). ANALYSIS OF THE APPEAL LETTER One appeal letter was received in response to the Notice of Action issued for this project. (1) Below is an analysis of the issue raised in the appeal letter dated October 4, 2022 (Exhibit B). Issue #1: The preliminary approval of the cannabis retail business was approved when the location was in District 7 before the redistricting process. Public input from District 3 residents was not considered when the preliminary approval was given. Response: For the preliminary approval process, all Councilmembers are notified of each preliminarily approved cannabis business and are provided 15 calendar days to have the ability to appeal the preliminary approval, for projects in their district, for discussion at a Council hearing. During this time, the subject property was located within Council District 7 and at that time the councilmember did not request an appeal of this cannabis retail business. As a result of the redistricting in December of 2021, the subject property became identified as within the Council District 3 boundaries. All property owners and tenants, within 1,000 feet of the subject property, were mailed notice of the proposed cannabis business in March 2021 after the initial application review, and again in September 2021, after the City Manager issued preliminary approval of the cannabis business permit. The properties that received this notice are also now in District 3 due to the redistricting process. Although this cannabis retail business was not in District 3 during the preliminary approval process, a neighborhood notice was mailed to all property owners within 1,000 feet of the subject property after it was redistricted to Council District 3 and the project was heard by the Council District 3 Project Review Committee. 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 proposed cannabis retail business would provide a retail store that 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 supports 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 calls for the cultivation of a skilled, educated, and well-trained workforce by increasing educational attainment and the relevant job skill levels to appeal to local and non-local businesses. Objective LU-6 calls for the retainment and enhancement of existing commercial areas to strengthen Fresno's economic base and site new office, retail, and lodging use districts to serve neighborhoods and regional visitors. Policy ED-4-f supports the use of private-public partnerships that bring together academic programs and employers through internships, mentoring, and outreach initiatives. Policy LU-1-a promotes new development, infill, and rehabilitation of existing building stock in the Downtown Planning Area, along BRT corridors, in established neighborhoods generally south of Herndon Avenue, and on other infill sites and vacant land within the city. 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. The proposed project will rehabilitate the existing building along a BRT corridor (North Blackstone Avenue). 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. Downtown Neighborhoods Community Plan Upon reviewing the policies contained in the Downtown Neighborhoods 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 FINDING 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 Resource 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 was made and Environmental Assessment P22-01492 was completed for this project on August 1, 2022 (Exhibit I). FRESNO MUNICIPAL CODE FINDINGS Based upon analysis of the applications, staff concludes that the required findings contained within Section 15-5306 et seq. of the Fresno Municipal Code. These findings are attached as Exhibit D. 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 Downtown Neighborhoods 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. Staff concludes that the required findings contained within Section 15-5306 et seq. of the FMC can be made. Upon consideration of this evaluation, it can be concluded that the proposed project is appropriate for the project site. Attachments: Exhibit A - Aerial Map Exhibit B - Appeal Letter [October 4, 2022] Exhibit C - Public Hearing Notice Radius Map Exhibit D - Fresno Municipal Code Findings Exhibit E - Conditions of Approval for P22-01492 [September 20, 2022] Exhibit F - Operational Statement [June 14, 2022] Exhibit G - Site Plan, Floor Plan, & Landscape Plan Exhibit H - Comments & Requirements from Responsible Agencies Exhibit I - Environmental Assessment P22-01492 [August 1, 2022] Exhibit J - Neighborhood Responsibility Plan [June 14, 2022] Exhibit K - Commercial Cannabis Business Permit Packet Exhibit L - Emails [October 27, 2022]