Interim zoning prohibits medical marijuana

Mayor Mike Jenson broke a tie vote on Monday, Dec. 7, as the Whitefish City Council adopted an interim zoning ordinance that prohibits medical marijuana businesses in Whitefish and within one mile of the city limits. The law went into effect when Jenson signed it after the meeting ended.

Councilors Ryan Friel, Frank Sweeney and Nancy Woodruff, who favored an alternative ordinance that would allow medical marijuana businesses to operate with a conditional-use permit, voted in opposition.

Noting that numerous questions remained about how to regulate this new type of industry, councilor Nick Palmer said he favored a total moratorium rather than an ordinance with conditions that might not work.

Councilor Turner Askew said he also favored a total moratorium.

"If we allow conditional-use permits that aren't right and then the business is grandfathered in — oops," he said.

Sweeney, on the other hand, said he favored the flexibility with conditional-use permits, which require applicants to come before the council for approval. But, he noted, as written the ordinance allowing conditional-use permits basically eliminated every site in the city and the one-mile surrounding area.

Concerned about how the media would portray the council's action, Palmer motioned to amend the interim ordinance to eliminate harsh language that made it sound like the medical marijuana industry would have a blighting effect on neighborhoods.

The "good news' is that the councilors, public and staff are not opposed to medical marijuana businesses in principle and agree the businesses need to be kept away from schools, churches and certain other uses, councilor Nancy Woodruff said.

"This is an issue that could have been explosive," she said. "I don't think it's that complicated. If a conditional use came up, we would carefully look at the application."

Sweeney was also concerned about the timeline for drafting and approving a permanent ordinance to regulate medical marijuana production, distribution and sales.

Noting how complex the issue is, city planning director David Taylor said the intent is to get a permanent zoning ordinance back before the city council within six months.

Growth of an industry

The perceived need for medical marijuana zoning arose in early November after the city planning department received a telephone inquiry from a person interested in setting up a medical marijuana clinic across Spokane Avenue from Whitefish Middle School, city attorney John Phelps told the city council.

"None of the city's zoning ordinances specifically deals with medical marijuana clinics," Phelps said, "and it appears that they would be lawful in at least the WB-3 downtown zoning district."

There also have been concerns about reports on how the medical marijuana industry has affected other cities in the U.S. — from reports of patients selling their medical marijuana on the streets and robberies that have taken place at dispensaries to the possibility organized crime could take over what appears to be a rapidly growing and profitable industry.

After briefly discussing the matter at their Nov. 16 meeting, and listening to the concerns of school superintendent Jerry House and middle school principal Kerry Drown, the council directed city staff to draft an interim zoning ordinance dealing with the establishment of medical marijuana businesses.

House told the council on Monday that the school district favors a total moratorium until all the problems can be worked out.

"The Montana Medical Marijuana Act does not talk about zoning," House said. "The city council has the opportunity to do that."

Montana state law allows Whitefish to enact an interim zoning ordinance without taking it to the Whitefish City-County Planning Board, and the ordinance becomes effective on a first reading after a single public hearing. The intent of the law is to allow a city to prohibit a use for six months, with one renewal for another six months, so the city can have time to investigate and study a permanent zoning ordinance to deal with the use.

Montana is one of 14 states with a medical marijuana law on the books, but the state law was given a boost Oct. 19 when the U.S. Justice Department announced a less restrictive position on medical marijuana.

The Montana Medical Marijuana Act went into effect in 2004 — after 62 percent of Montana voters and 68 percent of Whitefish voters approved an initiative calling for legalizing marijuana for medical uses — but interest skyrocketed this year. About three-quarters of the more than 4,500 medical marijuana patients registered with the state signed up this year. More than 600 of these patients are here in the Flathead.

There's also been a growth in the number of licensed caregivers, who can legally grow up to six plants for each patient, to more than 1,400 statewide. More than 200 Montana physicians have prescribed marijuana.

Those numbers, however, pale by comparison to Los Angeles, Calif., where the city council there directed city staff on Nov. 24 to look at capping the number of medical marijuana dispensaries to between 70 and 200.

Rick Rosio, the owner of Montana Pain Management, described to the council the professionalism of his business in Missoula, which provides medical marijuana and other medical products and services. The company has 10 employees and more than 300 patients and harvests 100 four-foot plants per month. He was supported by Columbia Falls resident Tom Roland, who is a patient at Montana Pain Management.

Threat of a lawsuit

The Billings city council also took a stab at zoning medical marijuana businesses, but they tabled the idea at their Nov. 9 meeting after medical marijuana proponents threatened to sue the city. The vote to table the interim zoning ordinance was 10-1.

One of those proponents threatened to sue the city of Whitefish in a Nov. 19 phone message left at City Hall. Michael Smith said his Bozeman-based nonprofit, The Healing Center, is "the largest medical marijuana provider in the state of Montana."

In reference to the city council's announced plans, Smith said, "If they try to enact any type of zoning for medical marijuana, our attorney, Mariah Eastman, will sue them, and we will file suit within 48 hours."

"Regardless of the city council's personal points of view, this law has passed, and the citizens of Montana have a right through the Constitution of Montana to access their medical marijuana at any location they choose," Smith said. "They are not to be zoned into bad areas like that. We're dealing with people that are dying, not drug addicts like people who take pharmaceuticals."

According to their Web site, The Healing Center (THC) serves Montana and Colorado. In Montana, they have collectives in Bozeman, Helena, Livingston, Great Falls and Butte, and they provide delivery service in Billings and Missoula. The Web site said a Kalispell site would open soon.

Phelps responded to Smith's phone message with a Nov. 25 letter that called Whitefish "a progressive, recreational community."

"Our city councilors understand that the sale of medical marijuana is a lawful pursuit," Phelps said. "I do not believe they have any intention of trying to keep it out of town or banish it to an industrial zone."

Phelps noted that local school officials were concerned about the proximity of one proposed dispensary, and he explained that "we have extensive commercial areas in town in which a medical marijuana dispensary could be located."

"I acknowledge your threat of litigation," Phelps said. "The city of Whitefish has adopted similar interim zoning ordinances in the past, has been sued and has prevailed each time. Rather than wasting time and money with litigation, I would encourage you to work with the city of Whitefish."

By Dec. 4, according to city manager Chuck Stearns, Smith had softened his stance and appeared more willing to work with the city.

The city also received numerous e-mails from around the country from businesses and organizations in the hydroponic farming industry concerned about their industry being tainted by association with medical marijuana.

That issue arose because of plans by three men to open a business on First Street near Whitefish Middle School called A-plus Hydroponic and Gardening. There were fears that the indoor growing equipment would be sold for marijuana production, and Phelps' memo to the city council refers to the business as a "medical marijuana clinic."

Alternative resolutions

Phelps provided the city council with two alternative resolutions for the interim zoning. Both direct the planning department to investigate and study the effect of allowing medical marijuana establishments to operate here and to come up with recommendations for zoning regulations.

In explaining the need for zoning medical marijuana establishments, the alternative resolutions said these businesses "could have a blighting or detrimental effect on neighborhoods or on nearby schools or recreational facilities, and can through such blighting effect create a public nuisance." The businesses could also "be immediately detrimental to, harmful to and a threat to the public peace, property, health, safety and welfare." The language on "blighting" was removed on an amendment motioned by Palmer, but the other language was retained to maintain a legally defensible position in a lawsuit.

In the first alternative, businesses that grow, sell or distribute medical marijuana or paraphernalia would be permitted to operate in certain zoning districts, but until ordinances were adopted addressing these businesses, they were prohibited from operating inside the city and within one mile of city limits.

The second alternative resolution would allow these businesses to operate with a conditional-use permit until new ordinances are adopted. They would be restricted to the WB-3 zone (downtown), WB-2 (the U.S. 93 strip), WB-4 (Baker Commons' and WI (industrial). Signs at medical marijuana establishments also could not depict marijuana leaves, buds, cigarettes or smoking paraphernalia.

In addition, medical marijuana establishments could not operate within 250 lineal feet of a public or private school, including pre-school through grade 12; public libraries; public playgrounds, parks or publicly owned multi-use trails; state-licensed daycares, group homes or personal care facilities; churches or other places of worship; and residentially-zoned properties.

The council approved the first alternative. The moratorium does not apply to patients with six plants and one ounce of marijuana or to caregivers with no more than three patients.