With Planning Board Vote, Kalispell Signals Hard Stance Against Medical Marijuana

By Beacon Staff

The Kalispell Planning Board voted 4-2 Tuesday to amend the zoning ordinance so it prohibits any new medical marijuana business from operating, in a sign that city officials plan to take a hard line against the dispensaries. The planning board’s decision now heads to the city council for consideration.

The specific vote was to prohibit any land use within Kalispell that conflicts with federal, state or local law, thus prohibiting medical marijuana businesses. Marijuana remains an illegal drug under federal law despite a 2004 voter initiative in Montana that legalized its sale and use for medicinal purposes. The Obama Administration recently announced it would not prosecute medical marijuana cases, and the industry has since begun expanding rapidly in Montana.

According to Planning Director Tom Jentz, Flathead County ranks third in the state in terms of medical marijuana patients with 1,116, and has the second highest number of licensed caregivers with 275.

The conflict between state and federal law, as well as the possibility of damaging Kalispell’s image with tourists were among the chief reasons cited by those who supported prohibiting medical marijuana businesses altogether.

“I believe Kalispell is nothing more than the way it is and the reason for most of us being here should be kept in that respect,” board member C.M. Clark, who introduced the motion, said. “If we’re known as the marijuana capital of the northwest I don’t think that does a whole lot of good for us.”

Board Vice President John Hinchey also voiced the concern, cited by City Attorney Charlie Harball and other staff, that Kalispell could do damage to its future prospects for federal grants and other funding should a different presidential administration decide to once again enforce the drug laws on its books regarding medical marijuana.

“The fact that we’re violating federal law tells me that the city of Kalispell could potentially be setting itself up for some real problems downstream,” Hinchey said. “I just think that we’re really sticking our neck in the noose by allowing medical marijuana in the city.”

The proposed ordinance change deals strictly with zoning medical marijuana businesses as a land use. The three existing dispensaries already established prior to the moratorium instituted by the city council Feb. 16 are grandfathered in. Nor would any patients with a prescription card be prevented from consuming medical marijuana or growing it in their homes within the law.

But selling marijuana as a business, either from a storefront or a home, would be prohibited and subject to a civil citation that could cost the violator as much as $500 per day. The Planning Board passed an amendment specifically directed at prohibiting medical marijuana businesses from operating out of anyone’s home within the city, as a sign of how strictly board members are approaching the issue.

What action the city council may take is currently unclear, and a public hearing and debate will be scheduled before any vote. But in a March 8 work session on medical marijuana zoning, the night before the planning board’s vote, most council members signaled they were unlikely to take an approach allowing for more medical marijuana businesses to spring up within Kalispell.

“We need to take the high road and state that no land use will be permitted in the city that violates state or federal laws,” Councilman Jim Atkinson said. “We need to take the high road and say we will not make any policy that allows for use and sale of marijuana.”

Councilman Jeff Zauner agreed with Atkinson’s statement.

At the sparsely attended planning board hearing, members were surprised no one in the public spoke up on behalf of the medical marijuana community, with two citizens suggesting marijuana be regulated similarly to alcohol.

But during the debate, Planning Board President Bryan Schutt strenuously objected to the direction of the policy, arguing that simply prohibiting these businesses was akin to ignoring the issue, when a more effective approach was to offer conditional use permits on a case-by-case basis, “regulate the heck out of it,” impose buffer zones around schools, churches and other incompatible uses, and closely monitor medical marijuana dispensaries, so as to “weed out the bad apples.”

Schutt, who along with Board Member Troy Mendius cast the dissenting votes, also observed that prohibiting medical marijuana sets a bad precedent of Kalispell ignoring state laws it finds disagreeable, and could result in costly legal battles.

“I think this sets us up for lawsuits from the other side of things,” Schutt said. “What happens to the bedridden glaucoma patient who says the city of Kalispell wouldn’t let me get to what I needed?”

Schutt also wondered what would happen should a medical marijuana dispensary open on one of the “islands” of county land that exist within the city.

“We’ve lost our ability to regulate and we’re going to see the harmful effects of it,” Schutt said.

But Harball noted that zoning for medical marijuana would make it harder for the city to undo or back out of any regulations should federal enforcement once again tighten up, likening it to when the federal government withheld highway funds to coerce Montana to raise its drinking age. Forcing operating medical marijuana businesses to shutter, Harball added, would not be as easy.

“Try and do that as a city after you have had a zoning change with people investing money and livelihoods, and then turn on a dime and say ‘Oh you can’t do that anymore,” Harball said. “We’d basically have to buy their businesses, which the city cannot afford to do.”

Nor was Clark swayed by Schutt’s argument.

“My motion is to take a very strong stand on it,” he said. “I didn’t sit on this board to risk our city.”

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