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Ann Arbor -Licensing Or Zoning For Medical Marijuana


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Licensing or Zoning for Medical Marijuana?

Ann Arbor city attorney, planning staff pursuing dual tracks

BY MARY MORGAN

 

SEPTEMBER 13, 2010

 

At the Aug. 5, 2010 meeting of the Ann Arbor city council, councilmembers considered a resolution originally drafted by city attorney Stephen Postema to impose a temporary moratorium on the dispensing and growing of medical marijuana. The city council ultimately passed a modified version of the moratorium, with exemptions for patients and caregivers, a grandfathering-in of existing facilities in the city and a reduction in the length of the moratorium from 180 to 120 days. The moratorium ends Dec. 3.

 

Ann Arbor planning staff and members of the planning commission's ordinance revisions committee discuss existing zoning areas and implications of ordinance changes at their Sept. 13 meeting. Clockwise from left: Wendy Rampson, Jill Thacher, Kirk Westphal, Jean Carlberg. (Photo by the writer.)

 

The resolution passed by the council also directed the city staff and planning commission to look at possible zoning ordinance changes, with the intent of regulating medical marijuana in Ann Arbor. The resolution does not mention other regulatory approaches, such as licensing.

 

Since then, the city’s planning staff and the ordinance revisions committee of the planning commission have been developing recommendations to change the city’s zoning code. The changes would regulate medical marijuana dispensaries as well as marijuana grown by registered caregivers as a “home occupation.”

 

At a Monday, Sept. 13 meeting of the ordinance revisions committee, the group mentioned a parallel track that’s being pursued by the city attorney’s office: licensing of medical marijuana dispensaries. Wendy Rampson, head of the city’s planning department, said that Postema has also been working with the Michigan Association of Municipal Attorneys regarding an approach to licensing medical marijuana. Postema is president of that group.

The development of a licensing approach to regulate medical marijuana was not a directive given in council’s Aug. 5 resolution – only zoning was addressed:

 

RESOLVED, That City Council hereby imposes a temporary moratorium prohibiting the initiation or expansion of the use of any property in the City as a facility for dispensing marihuana for medical and any other purpose and for cultivating marihuana plants, and that any zoning compliance permits or building and trade permits for such uses be deferred for a period of 120 days from the date of this resolution, in conjunction with the study and revision of the City’s Zoning Ordinance or other ordinances regarding this issue;

RESOLVED, That this moratorium does not apply to the following:

 

A dwelling unit (as defined by the Zoning Ordinance) where a qualifying patient under the Act resides and is cultivating up to the maximum number of marihuana plants permitted by the Act for personal use or possesses up to the maximum amount of marihuana permitted by the Act for personal use. A building or structure (as defined by the Zoning Ordinance) other than a dwelling unit where no more than one qualifying patient under the Act is cultivating up to the maximum number of marihuana plants permitted by the Act for personal use or possesses up to the maximum amount of marihuana permitted by the Act for personal use.

 

 

A dwelling unit or other building or structure where no more than one primary caregiver under the Act is cultivating up to the maximum number of marihuana plants permitted by the Act for assisting a qualifying patient or possesses up to the maximum amount of marihuana permitted by the Act for assisting a qualifying patient.

 

RESOLVED, That City Council directs City staff and the Planning Commission to study and make specific recommendations for ordinance amendments that restrict facilities for dispensing marihuana to appropriate zoning districts along with spacing requirements, and to also regulate such use in residential districts;

 

RESOLVED, That the moratorium imposed by this resolution shall expire the earlier of 120 days from its effective date or upon adoption by City Council of ordinance amendments regarding the issue of facilities for dispensing marihuana and/or cultivating plants for medical or any other purposes.

 

Ordinance Revisions Committee: Possible Zoning Changes

 

The ordinance revisions committee has met three times over the past month, most recently on Monday, Sept. 13. The committee consists of four planning commissioners: Bonnie Bona, Jean Carlberg, Eric Mahler and Kirk Westphal. Possible zoning changes are being drafted by Jill Thacher of the city’s planning staff, with input and feedback from the committee.

Monday’s meeting was attended by Carlberg, Westphal, Thacher and Wendy Rampson, head of city planning. The group discussed several possible changes [still in draft form] to the city code.

 

Regarding location: No medical marijuana dispensary shall be located on a parcel within 200 feet of a residential district, and shall be located only in D1, D2, C2, C3, M1 or M2 (downtown, commercial and light industrial) zoning districts. No medical marijuana dispensary shall be established within 500 feet of another medical marijuana dispensary. No medical marijuana dispensary shall be located within 1,000 feet of a parcel on which a public school is located.

 

Regarding the use of medical marijuana dispensaries: No person shall reside in or permit any person to reside in the premises of a medical marijuana dispensary, except as allowed in the M (light industrial) zoning districts. No person operating a medical marijuana dispensary shall permit any person under the age of 18 to be on the premises. The operator of a medical marijuana dispensary must be a registered caregiver. No person shall become the lessee or sub-lessee of any property for the purpose of using said property for a medical marijuana dispensary without the express written permission of the owner of the property for such use and a zoning compliance permit from the city of Ann Arbor.

 

 

In D1 zoning districts, medical marijuana may be dispensed, but not grown. Odors may not leave the unit occupied by the medical marijuana dispensary. No drive-through windows are allowed at a medical marijuana dispensary. No on-site smoking or consumption is allowed at a medical marijuana dispensary.

 

Regarding medical marijuana as a “home occupation”: One registered caregiver per single-family home is limited to providing medical marijuana to five patients. Caregivers may not give, sell, or otherwise transfer medical marijuana to anyone other than the five patients that have designated them as their caregiver through the Michigan Dept. of Community Health.

Caregivers must deliver to patients – no pickups are allowed from a caregiver’s house. An annual zoning compliance permit is required. Odors may not leave the property.

The decision has been made to treat medical marijuana as a separate, standalone section in the city code, Rampson said, similar to the section on adult entertainment uses in Chapter 55, Article III, Section 5:50 of the city code.

 

During Monday’s meeting, Thacher – who because of this task has become somewhat of an expert on the Michigan Medical Marijuana Act of 2008, which was approved by Michigan voters – said that under these draft recommendations, 431 parcels in the city could be eligible to be used for a medical marijuana dispensary. The group discussed possible ways to limit the size of a dispensary, such as regulating a minimum amount of parking.

 

Carlberg asked whether the city knows how many registered caregivers there are in Ann Arbor. Thacher reported that the state won’t release information about registered caregivers or patients. Rampson clarified that the only way to know would be if there’s a licensing requirement in the city. Similar to the process of getting a liquor license, a license to operate a medical marijuana dispensary could require inspections for fire safety and building code compliance, as well as a criminal background check, she said. And if the city adopts a licensing approach, that would likely mean that some of the zoning changes being discussed wouldn’t be necessary.

 

Westphal noted that if a dispensary is regulated through zoning and is compliant with zoning ordinances, there’s no way to shut it down – even if it’s causing problems in the surrounding area. Earlier in the meeting the group had discussed the cost of medical marijuana – more than $300 per ounce – and Carlberg had commented that it could create a crime zone around the dispensaries.

 

Westphal said that licensing is a great idea, and would give the city more control over these dispensaries. At the end of Monday’s meeting, Thacher said she would put together the draft recommendations for the full planning commission to discuss at their working session on Tuesday, Sept. 14. The goal is to draft a resolution that could be posted on the city’s website on Wednesday as part of the planning commission’s agenda for its Sept. 21 meeting, when a public hearing on the ordinance changes is planned.

 

 

 

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

3000 Town Center, Suite, 1800

Southfield, MI 48075

800-656-3557 (Toll Free)

248-351-2200 (Office)

248-357-2550 (Phone)

248-351-2211 (Fax)

Email: michael@komornlaw.com

Website: www.komornlaw.com

Check out our Radio show:

http://www.blogtalkradio.com/planetgreentrees

NEW CALL IN NUMBER: (347) 326-9626

Live Every Wednesday 8-9:30 p.m.

PLANET GREENTREES

w/ Attorney Michael Komorn

 

The most relevant radio talk show for the Michigan Medical Marijuana Community. PERIOD.

 

If you have a medical marihuana question or comment, please email them to me, or leave them on the forum for the MMMA, and I will try to answer them live on the air.

 

http://www.blogtalkradio.com/planetgreentrees

PLANET GREENTREES Call-in Number: (347) 326-9626

Call-in Number: (347) 326-9626

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Let me say that there is no maximum number of marihuana plants permitted by the Act. There is nothing that states how many plants you can have. As a register patient, there is a limit on the number for which you will be protected. The actual number you can have is the number you can prove to the court is necessary for an uninterrupted supply for your condition.

 

That aside, this restricts group grow, outside of a dwelling, within a dwelling it limits grows to one patient? This moratorium does not apply to dwellings, building or structure with less than one patient grower and/or primary caregiver is cultivating the protected number of plants allowed by registration.

 

If in the right area, you can live at the dispensary.

 

I can see how this, “The operator of a medical marijuana dispensary must be a registered caregiver”, might be a problem. I think saying a registered patient would work better.

 

Caregivers will have to purchase an annual zoning compliance permit! This does not include the money from the 431 parcels in the city could be eligible to be used for a medical marijuana dispensary.

 

Whoa! If a dispensary is regulated through zoning and is compliant with zoning ordinances, there’s no way to shut it down – even if it’s causing problems in the surrounding area. As far as CG not being able to service patients from their home. I doubt if 5 people would bring increased traffic to the street.

 

A2 has been giving this thing some thought. This does not speak do what will happen should an order be detected. I see lots of people making lots of changes.

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What's up with the Home Occupation designation? Do Home Occupations require registration/licensing?

That's how I read things. Caregivers will have to register as a business. This would allow the city to collect money, and see who would owe business taxes. This would also allow the city to know how many registered caregivers there are in the city, and the maybe the names of the patients.

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