Marijuana moratorium extended one year

The Whitefish City Council tabled proposed zoning regulations for medical marijuana businesses at its May 17 meeting and extended the city's current medical marijuana moratorium for a year.

Mayor Mike Jenson pointed out that because time was running out on the current six-month urgency ordinance, an extension would be necessary even if the zoning regulations were approved. The votes were unanimous. Councilor Turner Askew was absent.

The council amended the urgency ordinance on April 5 so it prohibits all medical marijuana businesses, including caregivers in home-based occupations.

The Whitefish City-County Planning Board unanimously approved the draft zoning regulations during their April 15 meeting and sent them on to the city council.

The regulations would limit all medical marijuana dispensaries to the WB-2 and WB-4 zones — the U.S. 93 strip and the new Baker Commons business park next to The Wave.

Dispensaries could not be located within 200 feet of a public school, library, playground or park, a licensed daycare, group home or personal care facility, a church or another medical marijuana dispensary, which would basically limit them to the casino district on U.S. 93 and Baker Commons.

All dispensaries would need a conditional-use permit, which the council could deny for not meeting the zoning regulations criteria or if neighbors presented a valid case against the location.

Caregivers in a home-based occupation with up to five patients would be allowed to continue working subject to the city's regulations for all home occupations. Growing facilities would have to be located in specified rural, agricultural, industrial or business service zoning districts.

"The overall effect would be a hurdle that would result in only the most professional dispensaries surviving," city planning director David Taylor told the council.

Taylor said home-based medical marijuana businesses currently were hidden from view, and enforcement would be difficult so long as owners obeyed the state medical marijuana laws. For those reasons, "it would be best to limit them to a low number," he said.

"I don't want to see a plethora of these kinds of businesses getting into our neighborhoods," councilor John Muhlfeld said.

Several councilors expressed concerns about rising crime related to medical marijuana in other Montana towns and whether a 200-foot buffer was adequate.

Whitefish Police Chief Bill Dial advocated a 1,000-foot buffer and no on-site usage, but he was also concerned about having enough resources to enforce the regulations. He also said the murder of a medical marijuana patient in Kalispell was an "isolated incident."

Bigger concerns were fire and electrical hazards, and mold and insect health hazards, Dial said, and whether 'shake" discarded with household garbage could end up in the hands of Whitefish youths. What was needed was a countywide plan and action by the legislators to fix the existing law, he said.

"We're not the bogeyman," Dial said. "If it's the law, then let's regulate it properly."

City manager Chuck Stearns pointed out that a 1,000-foot buffer would essentially put the medical marijuana business "out of existence" inside the city limits.

Councilors were also concerned about whether they would violate their oaths of office by approving an ordinance that doesn't seem to comply with federal law.

Councilor Bill Kahle noted that the federal Drug Enforcement Agency recently arrested a medical marijuana provider in Denver who was licensed by the state of Colorado.

"It's still against federal law — we need an opinion on this from the Montana Attorney General," he said.

City attorney John Phelps said Kahle had a good point.

"I don't see how you can vote to approve this without breaking your oaths," he said.

Phelps advised approving the regulations on a first reading only before requesting an opinion from the state attorney general on whether the regulations violated federal law. The council could wait for the opinion before taking the required second reading.

But several of the councilors didn't like that idea. They wanted to know if Whitefish could legally regulate medical marijuana before they took any action.

State law allows local governments to enact urgency ordinances with a six-month limit and then to extend the temporary ordinance twice, for up to one year at a time.

Muhlfeld said delaying action for too long "will push activity to residential neighborhoods," but councilor Phil Mitchell disagreed.

"No matter what we do, they'll do whatever they want," he said.