5/17/2023 Minutes - Laserfiche WebLink

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Mr. O'Malley, Mr. Khawam, Mr. O'Shae, and board members were involved in discussion to clarify procedures, witnesses, and the adjudicatory process that was to be held. Mr. Khawam started with his opening statement expressing the importance to acknowledge the passions of the people that have attended the meeting. He explained of the concerns surrounding the Kava and Kratom issues, and the dispute of the chemical properties. He was interested to hear what the findings were as a result of the study from the moratorium. He went on and explained the legal aspect and stated that if something was not regulated or prohibited, then it was not able to be arbitrarily banned. He also pointed out there was nothing in the code that explicitly prohibited serving Kava and Kratom. Mr. Khawam proceeded to comment that the city was not allowed to criminalize this by using the code, further the procedure the city had taken had not restricted the applicants use. He stated there were two issues, one being if the applicant was or was not required to apply for a new certificate of occupancy; which he stated they did not have to do because the use was not regulated. And second, was whether the application was properly denied, by which the city did so due to the moratorium being in place; he stated it was improperly denied on that basis. He continued to say there was no other basis the city could have denied the application, because, he argued, it was not regulated nor was it illegal, and the use fell within the use of the code. He cited the code section 1119.03(a)(1). He went on and said it was whether there was a change in use or new business; this would have to be reviewed by the building commissioner and issued a certificate of zoning compliance. He also said a change in use does not occur when the proposed use is sufficiently similar to the current use, and when the change has no greater impact than the proposed use. He explained more regarding the code about only certain categories and the definitions. He stated the applicant was operating under a business without-drive-thru, which was the only use they could apply for. He offered that the evidence would show the commissioner blatantly denied the distinction of change of use. He spoke about the Council Meeting in November, and shared he was there and objected to the moratorium and that it didn't apply. He said the applicant had protected his property rights by engaging in business efforts. Those efforts included showing intention to operate, submitting a sign application, etc. He added that they did not receive a notice of legal noncompliance until after the moratorium was in effect. He stated that they were not illegally operating until the building commissioner determined they were and informed them of the decision. He stated that the permits that were issued, would not have been allowed under the moratorium, but that signed permits were issued and that created a legitimate expectation that the applicant would be able to obtain certain property rights. He stated there was no evidence that Sacred Waters was putting the city in peril, and the substances can be purchased at stores within the city to be consumed without regulation. His argument highlighted that the city's targeting of the applicant suggested arbitrariness, as they had acknowledged the product as a drug but had not outright banned it. Additionally, it was asserted that a municipality was not able to retroactively apply a zoning ordinance to deprive a property owner of their rights to a building permit. The evidence presented would undermine arguments by the city regarding previous use and established that the retroactive application of the moratorium was arbitrary and capricious. He added that the requirement for a change of use permit would be argued as unreasonable and arbitrarily applied and the denial based on the moratorium would be deemed inappropriate and arbitrarily applied. Mr. O'Malley called Neal Dorenkott Building Commissioner as his first witness. He offered to the board, if they wanted to follow, a list of exhibits to reference. Mr. Dorenkott spoke of his qualifications, work experience and certifications that allowed him to hold his title in the city. Mr. Dorenkott explained the relationship between building codes and zoning codes; building