The operation of a medical marijuana facility, a medical marijuana cultivation site, or an infusion food establishment shall only be allowed in accordance with the provisions, procedures and standards set forth in this chapter. (Ord. 2015-02, 7-14-2015)

   A.   The operation of a medical marijuana facility, a medical marijuana cultivation site, or an infusion food establishment is not allowed by right in any zoning district.

   B.   The operation of a medical marijuana facility is allowed only in an I-1 district in strict accordance with titles 3 and 4 of this code, with this section and only upon obtaining a special use permit for such use. No medical marijuana facility may be established or maintained within the Tombstone historic preservation district. Additionally, no sales of marijuana or product containing THC or intended for the use of marijuana shall be sold, transferred or exchanged within the Tombstone historic preservation district.

   C.   The operation of a medical marijuana cultivation site or an infusion food establishment is allowed only in an I-1 district not located in the Tombstone historic preservation district in strict accordance with this section and titles 3 and 4 of this code and only upon obtaining a special use permit for such use. No medical marijuana cultivation site or an infusion food establishment may be established or maintained within the Tombstone historic preservation district. Additionally, no sales of marijuana or product containing THC or intended for the use of marijuana shall be sold, transferred or exchanged within the Tombstone historic preservation district. (Ord. 2015-02, 7-14-2015)

   A.   The application procedures for a special use permit to operate a medical marijuana facility, a medical marijuana cultivation site, or an infusion food establishment at a specified premises shall be the same as the application procedures for general use permits, except that in addition to any other required submittals, an applicant shall provide:

      1.   The location of the premises at which the medical marijuana facility, the medical marijuana cultivation site, or infusion food establishment will be operated.

      2.   The identity of the medical marijuana dispensary that will operate the medical marijuana facility or the medical marijuana cultivation site, and, for an infusion food establishment, the identity of the operator of the establishment and that includes all of the following information:

         a.   If the application is by an agent for the owner the authorization must include an explicit acknowledgment from the owner that the owner knows that the proposed use of the property is as a medical marijuana dispensary.

         b.   The legal name of the medical marijuana dispensary.

         c.   The name, address and date of birth of each principal officer and board member of the nonprofit medical marijuana dispensary and the name, address and date of birth of each medical marijuana dispensary agent.

         d.   A copy of the operating procedures adopted in compliance with Arizona Revised Statutes section 36-2804(B)(1)(c).

         e.   A notarized certification that none of the principal officers or board members has been convicted of one of the following offenses:

            (1)   A violent crime as defined in Arizona Revised Statutes section 13-901.03(B) that was classified as a felony in the jurisdiction where the person was convicted;

            (2)   A violation of state or federal controlled substance law that was classified as a felony in the jurisdiction where the person was convicted including an offense for which the sentence, any term of probation, incarceration or supervised release, was completed within the ten (10) years prior to applying for the application for the dispensary or an offense involving conduct that would be immune from arrest, prosecution or penalty under Arizona Revised Statutes section 36-2811 except that the conduct occurred before the effective date of that statute or was prosecuted by an authority other than the state of Arizona.

         f.   A notarized certification that none of the principal officers or board members has served as a principal officer or board member for a registered nonprofit medical marijuana dispensary that has had its registration certificate revoked.

         g.   A statement acknowledging that the dispensary shall not make off site deliveries or sales.

         h.   A statement acknowledging that no products or materials, other than medical marijuana related goods or products in conformity with state law shall be sold on the premises and no person shall be permitted to consume marijuana or any illegal substance or beverage on the premises.

      3.   If the premises identified in the application is not owned by the medical marijuana dispensary making application for the use permit, a written statement signed by the property owner authorizing the applicant to apply for the use permit for the premises and consenting to the use being requested in the application.

      4.   A site plan for the property on which the premises is located showing lot dimensions with front, sides and rear setbacks, and, where applicable, its location within the larger development in which the property may be situated.

      5.   An accurate, to scale, floor plan clearly showing the configuration of the premises and stating the total floor space of the premises or portion thereof to be used for the purpose for which the use permit is requested. In addition to any other information, the floor plan shall specifically identify and provide as applicable: a) the location of the enclosed, locked facility in which cultivation or storage of medical marijuana will take place; b) the total floor space for the enclosed, locked facility; c) the location within the premises where infusion will take place; d) all entrances and exits to and from the premises, indicating which such entrances are secured and which, if any, are not secured; e) the location of any windows from which a member of the public can view activities occurring inside the premises; f) any additional security measures or devices to be installed in or upon the premises, including, without limitation, any on site alarm system or security lighting; and g) additional protections, if any, against medical marijuana diversion and theft. The floor plan shall comply with the definition of "enclosed locked facility" contained in Arizona Revised Statutes section 36-2801(6) and will be conducted completely within an enclosed, locked building.

      6.   The applicant shall be required to post a copy of the entire application in a newspaper of local weekly distribution for a period not less than four (4) consecutive weeks at the applicant's sole expense.

      7.   The applicant shall be required to pay an application fee to the city of Tombstone in the amount of one thousand dollars ($1,000.00) or such other amount as the city council, in its discretion deems appropriate.

   B.   Upon receipt of an application and fee, the office of city clerk shall provide written notice via the United States postal service to all residents and businesses within the ward of the proposed use, as well as the council member representing the ward. Any resident of Tombstone or licensed business within Tombstone may provide statements of approval or disapproval to the board of adjustment and appeals, who shall provide copies of those statements to all members of the board of adjustment and appeals. The board of adjustment and appeals shall conduct a public hearing in accordance with section 10-16-3 of this title.

   C.   In the event the board of adjustment and appeals finds conformity to the standard requirements established in this chapter as well as rules and regulations established by the state of Arizona not otherwise stated herein, and the board finds that detriment or injury to the neighborhood, businesses or tourist industry will not result from the granting of a permit as applied for, it may approve or conditionally approve the issuance of said permit and transmit notice of its action to the building inspector. A report of its findings and recommendations and any conditions imposed or required shall also be submitted promptly to the planning and zoning commission and the city council.

   D.   In the event the board of adjustment and appeals disapproves an application for permit under this chapter, the board shall state with specificity in its minutes why it has decided to disapprove the application and provide the applicant thirty (30) days to remedy any concerns of the board. No permit shall be issued pending further action thereon by an appeal to the city council within thirty (30) days from the date a final disapproval is officially entered on the minutes of the board. If city council shall overrule the action of the board, then the building inspector shall issue the request permit without further action of the board, unless the city council orders the board to hold a further hearing to permit the board to fix conditions or require guarantees, as set forth in sections 10-16-7 and 10-16-8 of this title.

   E.   Prior to the city council taking any action on a permit under this chapter, the city council shall allow any member of the public body or licensed local business potentially affected to address the city council on the application at a public meeting.

   F.   If the city council declines to approve the permit, the applicant may seek appellate relief through the Cochise County superior court, but must do so within thirty (30) days of city council action declining to issue a permit. If said court shall overrule the action of the city council, then the building inspector shall issue the request permit without further action of the council or board of adjustment and appeals, unless the court orders the board of adjustment and appeals to hold a further hearing to permit the board to fix conditions or require guarantees, as set forth in sections 10-16-7 and 10-16-8 of this title. In that situation, the same process contained in this subsection shall be followed. (Ord. 2015-02, 7-14-2015)

The review and approval of an application for a use permit to operate a medical marijuana facility, a medical marijuana cultivation site, or an infusion food establishment shall consider all relevant land use factors, including, but not limited to, the use permit criteria and location requirements stated in sections 10-24-6 and 10-24-7 of this chapter and other parts of this code addressing the following:

   A.   Consistency with the comprehensive plan.

   B.   Ingress and egress to property and proposed structures, pedestrian and vehicular circulation with particular reference to fire protection.

   C.   Off street parking and loading.

   D.   General compatibility of use with adjacent property and property in the district.

   E.   Impact on public services, including schools, recreation, and utilities.

   F.   Screening and buffering of uses.

   G.   Signage.

   H.   Exterior lighting with reference to adjacent properties.

   I.   Stormwater retention and landscaping.

   J.   Site and building design for conformance with the comprehensive plan and policies and city standards.

   K.   Fire and police safety and enforcement. (Ord. 2015-02, 7-14-2015)

   A.   The board of adjustment and review may recommend to the city council approval of the application for a use permit under this chapter based upon the following findings:

      1.   Written confirmation from the board of adjustment and appeals stating the request complies with all the requirements of this chapter.

      2.   A recommendation from the board of adjustment and appeals for approval.

      3.   The city council finds after a public hearing and comment that the request shall not be detrimental to persons residing or working in the vicinity, to adjacent property, to the neighborhood or to the public welfare in general, to Tombstone's tourist industry or to any other established business in Tombstone, and that the use will be in full conformity with the conditions, requirement or standards prescribed by this code, the state of Arizona and as otherwise determined by the city council. The city council may decline to approve a medical marijuana dispensary at a site if substantial evidence is presented that locating the dispensary at the proposed site will negatively impact neighboring property values or established businesses or if substantial evidence is presented that shows that locating the dispensary at the proposed site will create an unreasonable risk to the health, safety or general welfare in the area.

   B.   If the city council declines to approve the permit it will either adopt the findings of the board of adjustment and appeals into its minutes or state with specificity within its minutes all additional findings upon which the decision was based. A verbatim record of the public meeting shall be made available to the applicant at no charge in the event of an appeal to the Cochise County superior court. (Ord. 2015-02, 7-14-2015)

The premises in or upon which shall be operated a medical marijuana facility, a medical marijuana cultivation site or an infusion food establishment shall:

   A.   Be located in a permanent building and shall not be located in a temporary structure, trailer, cargo container, motor vehicle, or other similar nonpermanent enclosure.

   B.   Not be larger than two thousand five hundred (2,500) gross square feet for a medical marijuana facility and three thousand (3,000) gross square feet for a medical marijuana cultivation site. The secure storage area shall not exceed five hundred (500) square feet in a medical marijuana facility and one thousand (1,000) square feet in a medical marijuana cultivation site.

   C.   Be operated only by a medical marijuana dispensary or, in the case of an infusion food establishment, a person or entity authorized by state law to infuse edible food products, who does:

      1.   Comply with all registration and recordkeeping required by the city of Tombstone, Cochise County and Arizona law.

      2.   Obtain, maintain and display a valid city of Tombstone business registration or license as may be required by this code.

      3.   Not provide off site deliveries of medical marijuana to a cardholder.

      4.   Not sell merchandise other than medical marijuana and related supplies.

      5.   Not have or operate drive-through facilities or takeout windows.

      6.   Not emit dust, fumes, vapors or odors into the environment.

      7.   Prohibit consumption of medical marijuana on the premises.

      8.   Not permit outdoor seating anywhere on the premises. Where the premises is located within a larger commercial or industrial development having walkways or other common areas containing already existing outdoor seating required as a condition of the zoning for the development, then no new outdoor seating shall be located immediately adjacent to the premises.

      9.   Allow annual fire inspections pursuant to this code.

      10.   Have operating hours not earlier than nine o'clock (9:00) A.M. and not later than five o'clock (5:00) P.M. (Ord. 2015-02, 7-14-2015)

A medical marijuana facility or a medical marijuana cultivation site shall be located a minimum distance from the uses set forth in table (1), "Medical Marijuana Facilities Location Requirements", of this section. Measurements shall be made in a straight line in any direction from the closest exterior wall of the medical marijuana facility or medical marijuana cultivation site to the nearest property line of any parcel containing uses identified in the table. No separation is required when a medical marijuana facility or a medical marijuana cultivation site is separated from another such facility or site by a freeway.

   TABLE (1)

   MEDICAL MARIJUANA

   FACILITIES LOCATION REQUIREMENTS

 

Note: As part of the use permit review process, the city council may allow minor deviations to the separation requirements if council finds that, under the particular circumstances, the subject premises is so located as to satisfy the intent of the separation requirements. (Ord. 2015-02, 7-14-2015)

   A.   A use permit issued under this chapter shall be valid for a period of one year from the date of city council approval of the use permit application, except as provided in subsection B of this section.

   B.   A use permit issued under this chapter shall be deemed void and to have automatically expired if the permitted use is not substantially commenced by the permit holder or substantial construction has not taken place within one hundred eighty (180) days after the date of city council approval. The building inspector shall determine whether there is substantial commencement.

   C.   The validity of a use permit under this chapter is further conditioned upon the permit holder and the permitted premises being at all times in compliance with state laws regulating medical marijuana facilities, medical marijuana cultivation sites and infusion food establishments as well as, in compliance with applicable city building codes, development standards and other land use regulations stated in the zoning code or any other ordinance or code adopted by the city of Tombstone. (Ord. 2015-02, 7-14-2015)

A use permit issued under this chapter is not transferable to any other location or premises, nor is it valid for any other use or business associated with a medical marijuana dispensary that is not specifically identified in the use permit. (Ord. 2015-02, 7-14-2015)

   A.   A use permit issued under this chapter may be renewed by filing an application for renewal on a form provided by the zoning officer. The application for renewal shall be received by the zoning officer not less than seventy (70) days before the expiration of the permit. When the application for renewal is received less than seventy (70) days before the expiration date, the expiration of the use permit shall not be delayed, postponed or otherwise affected.

   B.   An application for renewal shall be considered following the same procedures as an original application. The application for renewal may be denied for any reason that an original application may be denied or revoked.

   C.   A medical marijuana facility or medical marijuana cultivation site lawfully operating is not rendered in violation of the distance requirements set forth in section 10-24-7, table (1) of this chapter if, subsequent to the initial granting of the use permit, any of the uses identified in section 10-24-7, table (1) of this chapter are constructed or located within the required separation area. This provision applies only to the renewal of a valid use permit and does not apply when an application for a use permit is submitted after a use permit has expired or has been revoked. (Ord. 2015-02, 7-14-2015)

   A.   In addition to any other penalties or remedies provided by this title, the zoning officer may suspend or revoke a use permit upon a finding of:

      1.   A material change in the permitted use or the conditions prescribed upon issuance of the use permit has occurred without an amendment to the use permit having been obtained; or

      2.   Material noncompliance with the conditions prescribed upon issuance of the use permit or with the representations made by the permit holder in connection with the application for the use permit as to the nature of the conditional use to be conducted; or

      3.   Operation of the permitted use in such a manner as to cause a substantial detrimental impact on neighboring persons or property.

      4.   To suspend or revoke a use permit, the zoning officer shall deliver or mail by certified mail to the address indicated on the use permit application and, if different from application address, the address of the property subject to the use permit, a written notice that the use permit is suspended or revoked and which states the grounds therefor.

      5.   Upon written request received by the zoning officer within ten (10) days of the date of the notice by the permit holder, or any person whose use of the permitted property will be adversely affected by the suspension or revocation, the matter will be referred to the board of adjustment and appeals on an appeal pursuant to the appeal procedures provided under section 3-1-11 of this code. If an appeal is not received within ten (10) days of the date of the notice, the suspension or revocation shall take effect on the eleventh day after the date of the notice.

      6.   The decision of the board of adjustment and appeals may be appealed as provided in section 3-1-11 of this code. (Ord. 2015-02, 7-14-2015)