Pubdate: Wed, 01 Jun 2016
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2016 The Arizona Republic
Contact: http://www.azcentral.com/arizonarepublic/opinions/sendaletter.html
Website: http://www.azcentral.com/arizonarepublic/
Details: http://www.mapinc.org/media/24
Author: Chris Coppola, The Republic

PROPOSAL FOR TEMPE MARIJUANA DISPENSARY NEAR ASU HEADED TO COURT

A dispute over whether a medical-marijuana facility can locate across
from Arizona State University property in Tempe is headed toward a
showdown in Maricopa County Superior Court.

The dispensary, Healing Healthcare Inc., claims city officials wrongly
invoked an ordinance that prevents dispensaries from locating within
500 feet of residential zoning districts when it sought to open in a
building across from ASU's Karsten Golf Course, on McClintock Drive
just south of Rio Salado Parkway.

The Karsten Golf Course is zoned as an agricultural area but it is
included in the residential district category and could be rezoned for
houses or apartments, the city said.

The dispensary's backers lost a second appeal of their application
with the city's Board of Adjustment and thus will pursue the lawsuit,
which they filed earlier this year.

Healing Healthcare, in its lawsuit, argues the zoning ruling makes
little sense because homes never will be built on the land, which is
designated as a parking area in ASU's long-range master plan. In
addition, high-voltage power lines cross the property and an Arizona
Public Service power plant is nearby.

Tempe overstepped state law, suit says

The suit says Tempe's decision oversteps state law, which says cities
must enact "reasonable" zoning rules for dispensaries. The suit
contends that available commercial space for a dispensary in Tempe is
limited.

Mark Fuller, an attorney for Healing Healthcare Inc., told the city's
Board of Adjustment at its May 25 meeting that the company would
continue to pursue the lawsuit, which was filed in March, if the board
rejected its appeal.

The meeting was held to hear a claim by the dispensary that a board
member should have abstained from voting on the matter during a
February hearing because he had a conflict of interest.

David Lyon denied he had any conflict when voting on Feb. 24 to uphold
the decision by city planning staff to reject the dispensary's
application.

Fuller said Lyon had at least the appearance of a conflict because a
Phoenix architectural design firm he works for, SmithGroupJJR, worked
on ASU's master plan to redevelop land that includes the golf course.

"The issue is, how is it perceived by the public?" Fuller said at the
meeting. ""This whole process has gone awry. We've got this train wreck."

The board, however, disagreed and rejected that appeal, also on a 4-3
vote, with Lyon voting with the majority.

City officials declined to comment because of the lawsuit. The city
also declined comment when asked by The Republic whether Lyon's vote
at the May 25 meeting was a conflict of interest because it involved
his action at the February meeting.

Lyon did not return a call seeking comment, but during the meeting, he
strongly denied he had any conflict.

A question of conflict of interest

"The simple matter of it is I don't see any conflict of interest," he
said, adding he owns no property near the project and has no financial
interest.

Lyon said he is a lowest-ranking architect with SmithGroupJJR, having
started there Feb. 8, and was not aware of any work that the firm did
with ASU on the master plan.

"I had no idea of any connection between SmithGroupJJR and ASU," he
said. "I cannot see any way that I have any conflict of interest. I
have no monetary interest, and quite frankly, it doesn't even matter
to me. "

However, Fuller said, the mere appearance of a conflict is enough to
meet the legal standard for abstaining from a vote. He noted that, at
the Feb. 24 meeting, when the board voted 4-3 to reject the first
appeal, Lyon compared the dispensary to "noxious adult uses and public
nuisances."

Fuller declined additional comment to TheRepublic.

Three members - John Puzaukas, Richard Kausal and Kevin Cullen - voted
to reconsider the Feb. 24 action, with some agreeing the appearance of
a conflict was enough.

"I think I can see that. I think we need to judge that appearance, or
at least consider that," Puzaukas said.

But members Richard Dalton, Dave Naugle and Albert Dare joined Lyon to
uphold the Feb. 24 action.

"I believe Mr. Lyon was honest with us," said Dare. "In this
particular case, I do not believe Mr. Lyon had any negative influence
on this matter."

The city denies it acted improperly in a court filing responding to
the suit. No trial date has been set.

At the May 25 meeting, several nearby property owners spoke against
the dispensary location primarily because of limited parking for the
business, which would front a narrow commercial strip on McClintock
Drive. City officials did not consider the parking issue because the
zoning request was rejected at the outset.
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MAP posted-by: Jo-D