Joining other cities around Montana and in the Flathead confronting the issue, Kalispell City Council voted Tuesday night to impose a temporary prohibition on medical marijuana caregiver facilities, referring questions of how and whether to regulate such businesses to the planning board for its review and recommendation.
The 90-day moratorium passed 8-1, with Councilman Bob Hafferman as the sole dissenting vote. In what was a surprising juxtaposition, Hafferman, who is among the more conservative members of the council, was the most outspoken advocate on behalf of the medical marijuana caregivers, many of whom sat in the audience. But Hafferman’s position was that if these businesses are legal, the city should take care not to infringe on their operations.
“I find nothing that mentions a medical marijuana business is violating any existing laws,” he said. “I’m opposed to any action when a business is in violation of no laws.”
The dilemma facing Kalispell was described by City Attorney Charlie Harball as a, “perfect storm.” Although a 2004 voter initiative decriminalized medical marijuana in Montana, its status was unclear until the 2009 Legislature enacted the Medical Marijuana Act. It remains an illegal drug under federal law, but the Obama Administration has announced it will not take enforcement measures against medical marijuana. Those conditions, coupled with the fact that it represents a potentially lucrative new market in an otherwise dismal economy, has caused caregiver businesses to sprout up across the state.
In January a clinic to help people obtain medical marijuana cards at Kalispell’s Red Lion Inn drew hundreds. Whitefish passed its own moratorium in December. And many Kalispell council members were visibly shocked during the meeting’s public comment portion when a Columbia Falls caregiver told them he estimated there were 200 medical marijuana businesses currently operating in Kalispell.
The true number of medical marijuana businesses operating in Kalispell is unclear. Planning Director Tom Jentz said unless a marijuana business needed a building permit to conduct a renovation, there was no requirement of any caregiver to notify the city. City Manager Jane Howington said the issue might prompt the city council to reconsider its decision not to require business permits – since that would be one way for Kalispell to track what types of businesses exist in the city.
The city has received several letters from concerned residents, particularly regarding a clinic that has opened across the street from Woodland Park, at the former location of Kay’s Bridal Shop and within a half-block of an elementary school. Harball also noted the state’s registry of licensed caregivers isn’t always up to date, which creates problems for police investigations when it comes to assessing whether a marijuana grow operation is illegal or state sanctioned.
Harball laid out a number of tentative options the city could take regarding these medical marijuana businesses, including adding a preface to the zoning code that states no city land can be used for anything that conflicts with federal, state or local law. Since marijuana clinics still conflict with federal law, that would prohibit them. Another option is to treat medical marijuana like gambling, making it a conditional use that requires a permit and must abide certain guidelines, like maintaining a specified distance from churches or schools.
But there is little the city can do to impose land use restrictions on medical marijuana facilities already operating.
“Any business that should be invested in and opened up before council has a land use designation is really grandfathered in,” Harball said. “The horse is out of the barn, so to speak, on that.”
Many medical marijuana caregivers present at the meeting said they were eager to have the city set forth clear guidelines so they could comply with them, complaining the “grey area” in state law makes it difficult for everyone involved, from law enforcement to those trying to run a legal business.
Josh Fox, who runs the dispensary across from Woodland Park, said he recently signed a one-year lease and is willing to work with the city to accommodate any concerns.
“I don’t feel what I’m doing is wrong,” Fox said. “I’m just trying to provide a nice, safe place to do medicine for my patients instead of meeting in parking lots and alleys like a lot of these other caregivers have to do.”
Another woman, who said she was hoping to open a medical marijuana dispensary on Main Street in Kalispell, said the delay imposed by a 90-day moratorium could potentially quash her business plan, and that she was on the verge of signing a lease.
Rebecca Sturdevant, a nurse practitioner, said marijuana is not medicine and should be treated by governments like alcohol as a substance to be regulated and taxed.
“I do not want to improve marijuana access in my town,” Sturdevant said. “Marijuana: not medicine, not legal, not in my town.”
The council’s discussion ranged from how the city could accommodate the legitimate concerns of residents displeased with medical marijuana dispensaries in their neighborhoods, while not infringing on the rights of businesses operating legally.
“I’m not sure how we can look at these dispensaries as any different than a pharmacy,” Mayor Tammi Fisher said. “I believe that this Woodland Park location is a horrible location, but it is what it is and we have to accept it and move forward because it seems like there is a vested property right there.”
Fisher asked Harball to write up a “lock-solid legal memorandum about what the city can do with these dispensaries if anything.”
Any zoning response will require a review by the planning board and a report to city council. They have three months.
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