Letter of Determination

Transcription

1 cou SAN FRANCISCO PLANNING DEPARTMENT May 10, 2011 Mr. Jeremy Paul Quickdraw Permit Consulting 60 Otis Street San Francisco CA Site Address: Assessor s Block/Lot: Zoning District: Staff Contact: Letter of Determination 1222 Sutter Street 0670/009 RC-4; Van Ness SUD Daniel Sider, (415) or dan.sider@sfgov.org 1650 Mission St. Suite 400 San Francisco, CA Reception: Fax: Planning Information: Dear Mr. Paul: This letter is in response to your request for a Letter of Determination regarding the property at 1222 Sutter Street. This parcel is located in the RC-4 (Residential-Commercial Combined, High Density) Zoning District and the Van Ness Special Use District. Because your letter relates to a Medical Cannabis Dispensary (MCD) at the subject property, and because MCD s are subject to additional restrictions based on proximity to schools, it should be noted that the parcel is located within 1,000 feet of the Redding Elementary School, located at 1421 Pine Street. Your letter requests a determination on three particular issues which are addressed below along with relevant background. Project Chronology. Starting in February 2005, 6,700 square feet of the ground floor, mezzanine, and basement of the subject property were used as an MCD (DBA "CannaMed Care") without the benefit of a permit. On April 12, 2007, Building Permit Application Number was filed in order to legalize an existing MCD at the property. The application was heard by the Planning Commission (Case Number D) on January 10, 2008 and approved by Planning Staff on the following day. On February , the Mayor s Office of Disability approved the application. However, prior to the permit being issued, and according to your letter, in October 2008 CannaMed Care closed for business as a result of threatened legal action by the Federal Government. Some or all of the vacated space was subsequently converted to a retail showroom for a lighting business, which continues to do business today. No additional permit activity took place until April 11, 2011, when the Department of Building Inspection (DBI) extended the expiration date of the permit until February 8, Two days later, on April 14, 2011, an agent for the owner of the property had DBI issue the permit so that the "existing" MCD could be authorized. Procedural Background. When the Building Permit Application in question was filed, Planning Code Section 217(k)(i) stated that - unlike ordinary MCD s - an MCD that was operating without the benefit of a permit as of April 1, 2005 could seek to legalize despite being within 1,000 of a school so long as a permit had been obtained before July of The Board of Supervisors subsequently amended Section 217(k)(i) to extend this deadline first to March 1, 2008 and then again to January 21, 2009 (Ordinance Numbers and 90-08, respectively). Following this, Section 217(k)(i) was deleted from the Planning Code on January 22, 2009 as it had no further utility. DBI s April 14 approval of the Building Permit www S{ianrHng, q

2 Mr. Jeremy Paul May 10, 2011 Quickdraw Permit Consulting Letter of Determination 60 Otis St Sutter Street San Francisco CA Application in question authorized an MCD within 1,000 of a school despite the fact that the exemption from this restriction expired two years earlier. Accordingly, and at the request of the Planning Department, DBI suspended the Permit on May 2, The following determinations are sought in your request: Issue One. Your letter asks: "Is it within the Zoning Administrator s discretion to recognize the extraordinary exceptional circumstances that required this business to close, despite the best efforts of the San Francisco Board of Supervisors to discourage enforcement of federal jurisdiction?" The Planning Code does not allow for any discretion regarding the deadlines in question. Those dates can be changed only through legislative action, as was done by the Board of Supervisors on two separate occasions. Issue Two. Your letter asks: "Can the Zoning Administrator authorize reinstatement of building permit application ?" Because the permit identified in your letter - which would have legalized the "existing" MCD at the subject property - has already been issued at the request of the property owner s agent, the question is moot. Regardless, while the Building Permit Application and associated Discretionary Review hearing proposed to legalize an existing MCD, that MCD has been shuttered - and the actual use changed - for as long as 2 years. Accordingly, the realworld facts have fundamentally changed such that the previously proposed project can no longer be executed. Specifically, there is no "existing" MCD to legalize. Even if this were not the case, as stated above the deadlines which would have prevented the Department s approval of the permit are legislatively fixed and allow no discretion on the part of the Zoning Administrator. Issue Three. Your letter asks: "Is Planning Commission action in case number DE valid or would this matter need to be reheard by the Planning Commission under mandatory discretionary review?" The permit which was reviewed by the Planning Commission under the abovereferenced case number was required to have been issued prior to the January 22, 2009 deadline under then-planning Code Section 217(k)(i). Accordingly, while the Commission s action to approve that particular application remains valid, the application itself was not further pursued - and now can no longer be pursued. Even if CannaMed Care was still in operation and had not been replaced by another use, the onset of the legislative deadline precludes the possibility of this permit application - or any other comparable permit - being heard or re-heard by the Planning Commission. APPEAL: If you believe this determination represents an error in interpretation of the Planning Code or abuse in discretion by the Zoning Administrator, an appeal may be filed with the Board of Appeals within 15 days of the date of this letter. For information regarding the appeals process, please contact the Board of Appeals located at 1650 Mission Street, Room 304, San Francisco, or call (415) Sincerely, Scott F. Sanchez Zoning Administrator cc: Mr. Patrick Buscovich, Agent for Property Owner Mr. Daniel Sider, Planning Department SAN FRANCISCO PLANNING DEPARTMENT

3 [P4?443- NW 0 i-v Em UM sm AM QUICKDRAW PERMIT CONSULTING RECEIVED MAR CITY & COUNTY OF S F PLANNING DEPARTMENT 60 Otis Street San Francisco CA Phone Fax Request for a Zoning Administrator s Letter of Determination regarding proposed reinstatement of Medical Cannabis Dispensary ("MCD") at 1222 Sutter Street, San Francisco, pursuant to Planning Commission Case T. (C6 7r/ o::p,; Mr. Scott Sanchez, Zoning Administrator: In 1992 California voters passed the Compassionate Use Act, legalizing marijuana for medical use. Locally, San Francisco s Medical Cannabis Act became effective on December 30, The Act, set forth in Board of Supervisors Ordinance (BOS File No ) and supported by Ordinances (BOS File No ) and (BOS File No ), amended the Planning, Health, Traffic, and Historic Preservation Codes. CASE NO T Planning Code Clean Up Amendments and Business and Tax Regulation Codes in order to establish a comprehensive regulatory framework for medical cannabis dispensaries ( MCDs") in San Francisco. The definition of an MCD had been amended four times to accommodate the final permitting of the City s existing dispensaries. The result were definitions and controls

4 Page 2 of 6 that have been extremely confusing to understand - for the public, dispensary operators, and for Department staff. CASE NO T streamlined existing definitions and controls providing much-needed certainty in an industry serving an essential need in our city, while under duress from federal law enforcement agencies. Procedural Background: CannaMed Care Center at 1222 Sutter Street, received final Planning Approval for continued operation as a Medical Cannabis Dispensary on January 11, 2008 following Mandatory Discretionary Review ( DE) of application heard the previous day by the San Francisco Planning Commission. On February 29, 2008 Site Permit approval was granted by the Department of Building Inspection. Fees had already been paid in full to the Department of Public Health, to the Department of Building Inspection, and to the Planning Department. Only one small fee for permit issuance remained to be paid for the final authorization of one of the and most unique and valued medical resource centers in San Francisco. In the winter and spring of 2008, the federal Drug Enforcement Agency ("DEA") under Bush administration policies, increased its efforts to shut down San Francisco s leading MCDs, with particular attention to the CannaMed Care Center. The business owner was threatened with prosecution for conspiracy and trafficking, as was the permit consultant and, most importantly and most persistently, the property owner. The

5 Page 3 of 6 property owner was additionally threatened with seizure of his property and attachment of assets. Privately there were threats of that his immigration status would be affected by further Federal investigation of his participation in a cannabis dispesary. The permit consultant representing the CannaMed Care Center approached the management of the Department of Building Inspection Permit Processing Center to arrange for an extension on the time limits for permit issuance, and was informed that the Department of Building Inspection was in regular contact with the DEA enforcement agents providing them with specific information on the current status of the CannaMed Care Center permit application. Under these conditions of fear and intimidation, the property owner ordered CannaMed Care Center to cease operations. In October 2008, less than a month before the presidential election which would change DEA policy, CannaMed closed its doors. On the very same day that site permit approval was granted for CannaMed Care Center. The San Francisco Board of Supervisors passed resolution File Number Resolution reaffirming that the City and County of San Francisco is a sanctuary for medical cannabis, an integral component of which are property owners who, pursuant to City regulations, lease space to authorized Medical Cannabis Dispensaries ("MCD"s) that provide needed services to qualified medical

6 Page 4 of 6 cannabis patients and their caregivers, and that the City vehemently condemns the Drug Enforcement Agency (DEA) for issuing sensational letters to these property owners threatening asset forfeiture and imprisonment- February 29, Recognizing the continued pressure being placed on San Francisco property owners by federal action, on April 28, 2008, the Board of Supervisors passed Ordinance amending the San Francisco Planning Code by amending Sections 209.3, 217, , and to extend the time period for certain medical cannabis dispensaries to obtain a permit from March 1, 2008 to January 21, Unfortunately for the patients served by CannaMed Care Center, this extension was not enough. DEA Special Agent in Charge Javiar F. Pena maintained pressure on the owner of 1222 Sutter St. through the offices of his real estate management firm into Under imminent threat of federal action, the property owner was unwilling to risk having CannaMed reopen, or to complete the permit process within the extended time limits. The San Francisco Planning Commission, in case DE, made the finding that 1222 Sutter Street is 950 feet from the nearest educational institution as defined by planning code section At that public hearing in January of 2008, CannaMed

7 Page 5 of 6 Care Center was authorized to operate as a Medical Cannabis Dispensary for on-site sale only as it had been in operation prior to April 1, On-site consumption of cannabis products was precluded as there was no "grandfather clause" in section K, allowing on-site consumption within 1000 feet of the nearest educational institution. The property owner at 1222 Sutter St. is no longer subject to Drug Enforcement Agency intimidation under the current presidential administration. Recognizing the need in the community that was previously fulfilled by CannaMed Care Center, the owner has granted authorization to CannaMed to complete the permitting process with the City and County of San Francisco, and regain occupancy of the subject property Request for Determination: Is it within the Zoning Administrator s discretion to recognize the extraordinary exceptional circumstances that required this business to close, despite the best efforts of the San Francisco Board of Supervisors to discourage enforcement of federal jurisdiction? Can the Zoning Administrator authorize reinstatement of building permit application ?

8 Page 6 of 6 Is Planning Commission action in case number DE valid or would this matter need to be reheard by the Planning Commission under mandatory discretionary review? Unique Circumstances of This Application: Please find attached a list of all San Francisco Medical Cannabis Dispensaries open on April 1, 2005, within the 1000 foot proximity limits to institutions defined by planning code section 209.3, and their current dispositions. This clearly demonstrates that there are no other analogous circumstances to CannaMed Care Center and 1222 Sutter Street. This is the only such dispensary that completed the Discretionary Review Procedures as required, paid all taxes and permit fees for continuation of operation up to final permit issuance, yet was prevented from continuing operations due to federal enforcement measures. Thank you for your assistance in this matter. Respectfully Submitted,