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US MI: A Dispensary Shuffle?

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URL: http://www.mapinc.or...1/n300/a08.html

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Votes: 0

Pubdate: Wed, 11 May 2011

Source: City Pulse (Lansing, MI)

Copyright: 2011 City Pulse

Contact:male2('letters','lansingcitypulse.com'); letters@lansingcitypulse.com

Website: http://www.lansingcitypulse.com/

Details: http://www.mapinc.org/media/4532

Author: Andy Balaskovitz

Bookmark: http://www.mapinc.org/find?275 (Cannabis - Michigan)

Bookmark: http://www.mapinc.org/find?253 (Cannabis - Medicinal - U.S.)

 

 

DISPENSARY SHUFFLE?

 

What Will Happen to the 41 Operating Medical Marijuana Dispensaries in Lansing? A Draft Regulation Ordinance That Would Force Most of Them to Move Surfaces, Raising Questions

 

The Lansing city attorney has presented a draft ordinance to regulate medical marijuana dispensaries in the city that if enacted would force 37 of them to move from their present location to stay in business.

 

The draft ordinance, written by City Attorney Brig Smith with input from Lansing City Councilwoman Carol Wood, has raised the eyebrows of some dispensary owners and local attorneys because it would restrict new dispensaries to industrially zoned areas of the city and force those not in those zones to move if they want to stay open.

 

The draft ordinance makes no provision for grandfathering existing businesses in their current locations if they are outside of industrially zoned areas.

 

"Those existing businesses in commercial areas who say they're allowed to be open, this ( ordinance ) says, 'No, you aren't,'" Smith said Thursday. "And that would be decided in court."

 

However, both Wood and Smith agree this aspect of the ordinance could change as it is examined in the Council's Public Safety Committee, which Wood chairs. But Wood said she is in favor of limiting new businesses to industrially zoned areas.

 

Forty-seven addresses are grandfathered in with the city where medical marijuana businesses may operate during the moratorium that started in December and lasts until July or if a new ordinance regulating them takes effect before July.

 

Of those, 41 are operating. Only four of them are in areas zoned for industrial use: Victoria's Club Med-a-sin at 1039 N. Cedar St., Mid-Michigan Patient's Group at 821 E. Kalamazoo St., Grand River Alternative Medicine at 711 E. Grand River Ave. and Buono's at 1419 Turner St.

 

So does the city really intend to force the other 37 businesses to move? If not, why didn't the city attorney add a line to the ordinance that says existing businesses not in industrial areas can stay open? And why does this ordinance suggest dispensaries are legal businesses but restricts them to industrially zoned areas?

 

"I think it's a starting point. I'm not saying it's the ending point," Wood said, adding that putting them in industrial areas came from neighborhood groups' concerns of the "proliferation" of dispensaries, particularly on the east side. "I want people to understand this is a first blush. I'm not saying I'm opposed to looking at grandfathering in or doing something for those already established as long as they meet with the licensing requirements."

 

But why not just include it in this draft?

 

"I don't know. That's a good question," Wood said. "We're talking about a draft we've got out there. That's why you go through the process."

 

Aside from existing businesses, Wood said it would be "her preference" that any future businesses would be in industrial areas. "But I'm only one vote on the Council."

 

Industrially zoned areas dot the city and sometimes are adjacent to commercially zoned properties.

 

Smith, who drafted the proposed legislation, said Monday that the issue of forcing businesses to move is "one of a number of issues" that needs to be addressed at the committee level.

 

"The nature of any legislation is that it's worked out in the committee process. I would cite you to 'Schoolhouse Rock!'" he said, referring to a children's cartoon series that did an episode on how laws are made.

 

One dispensary owner - Shekina Pena of Your Healthy Choice Clinic at 628 E. Michigan Ave. - said "this doesn't look like Brig's work at all," suggesting the ordinance goes too far by restricting commercial entities to industrial zones. Smith's response: "I have worked in conjunction with Council member Wood's vision. I have done my best to effectuate that vision with the understanding from 'Schoolhouse Rock!' that going through committee ( and getting reworked ) is how a bill becomes a law. If there is concern in the community, the committee should address that."

 

Smith said that the city faces "tension" at the county level from two prosecutors who disagree on whether dispensaries are legal. Ingham County Prosecutor Stuart Dunnings III thinks they're illegal, Eaton County Prosecutor Jeff Sauter thinks they're legal, Smith said.

 

The city is in both counties.

 

"If Eaton County feels one way and Ingham County feels the other way, that's a tension the city must face," he said.

 

Mayor Virg Bernero weighed in on the proposed ordinance Monday. He's against it and would like to see a more "progressive" regulatory approach from Council, allowing storefronts throughout the city but not in neighborhoods.

 

"I think it's the wrong way to go," Bernero said. "We need to facilitate what the voters voted for. I want to keep them ( dispensaries ) out of neighborhoods. What I envision is a regulated storefront."

 

Bernero said East Lansing's commercial medical marijuana ordinance - which was adopted in March and limits businesses to professional-office zoned areas - is "decent" but creates "marijuana ghettos."

 

Bernero said he's "disappointed" with the first draft of Lansing's ordinance. "I haven't seen the progressive leadership of Council step up. There are progressive voices on Council - they need to step up."

 

Two Components

 

The proposed ordinance regulates dispensaries in two ways: through zoning restrictions and licensing requirements. In order to open, a business must first obtain a license from the City Clerk's Office, which would last a year. The Council would determine prices of those for medical marijuana dispensaries. One of the license requirements is that a dispensary cannot violate any portion of the ordinance, which ties into the requirement of being in an industrially zoned area.

 

The draft ordinance would regulate dispensaries and cultivation businesses. A dispensary is defined as "a nonresidential land use where marihuana is distributed by one or more primary caregivers but is not grown or cultivated." A cultivation business is defined as "a nonresidential land use where marihuana is grown or cultivated in an enclosed, locked facility by one or more primary caregivers but is not distributed." Both types of businesses would be restricted to industrial areas.

 

A "stakeholder" in either of these businesses includes "a partner, a member, an officer, a director, an employee, or any person with an ownership interest of 10 percent or more." Their identities would have to be disclosed.

 

A Zoning Dilemma

 

By limiting businesses to industrially zoned areas, the proposed ordinance creates a "nonconforming use" situation for those 37 existing businesses not in industrially zoned areas.

 

Two local attorneys said that if the city forces the 37 dispensaries in Lansing to move in order to stay in business and owners decide to challenge the ordinance in court, the question won't be about whether they are allowed to stay, but if the dispensary itself is a legal business.

 

Matt Newburg, a local attorney who specializes in medical marijuana law, said case law throughout the state is clear on nonconforming uses. If a municipality drafts a zoning ordinance that forces a business into non-compliance, that business is allowed to continue operating. However, if you apply this concept to dispensaries, whose legality is being questioned in the state Court of Appeals, this issue isn't so clear.

 

An Isabella County circuit judge ruled this winter that a dispensary in Mount Pleasant is operating legally under the state Medical Marihuana Act.

 

That case, the state v. McQueen, is being appealed to the state Court of Appeals.

 

By allowing them in industrial zones, though, Newburg said the city is implying that they're legal businesses and are a "legal nonconforming use" and should be allowed to stay put.

 

Mary Chartier, of the Lansing-based firm Alane and Chartier, agrees with Newburg. Chartier questions the motives of limiting dispensaries to industrial zones.

 

"Either it's a legitimate business that's going to be allowed in the city or it's not. If it is, pushing them into a dark corner doesn't seem to be the best action," she said. "The city can't have it both ways. It can't recognize them as a legitimate business and then push them into a corner and still want their tax revenue. This ( ordinance ) seems to be an assault on legitimate businesses for legitimate patients. They should be treated like any other business."

 

Mark Wyckoff, director of the Planning and Zoning Center at Michigan State University, said that because businesses opened before the city specifically authorized them, the city could argue that dispensaries are therefore prohibited. If a dispensary challenges a forced move in court, Wyckoff said that even though the city is attempting to regulate them, they weren't recognized as permitted uses before the ordinance and would not have non-conforming-use protection. All of this leaves a lot of open-ended questions for Lansing dispensary owners, he said.

 

"The court would have to decide. This is not a unilateral thing," he said. "If you were going to invest in one of these businesses, I'd pick the five that are in the zone that are in place. They may suddenly increase their market share."

 

When asked if regulating zoning for dispensaries is in a league of its own, Wyckoff said, "Oh, yeah. You have a new set of legal arguments: Is the use itself even lawful? Whatever sense you make of ( regulating dispensaries ) is ephemeral. This is a moving target and it's going to continue to move for quite some time."

 

A Similar Situation in Ann Arbor

 

Lansing is not the only city that is attempting to regulate commercial medical marijuana businesses after some have already opened.

 

In Ann Arbor, between two and 15 dispensaries opened before the Ann Arbor City Council adopted a moratorium in August on new ones. Ann Arbor City Councilwoman Sabra Briere said that "nobody had a clear grasp of how many medical marijuana dispensaries were in operation" at the time of the moratorium and still don't. She said that's creating a problem at this point because the licensing portion of the proposed ordinance grants licenses in proportion to how many are open.

 

As for zoning, Ann Arbor's proposed ordinance is similar in that it would regulate nonresidential grow operations and dispensaries. However, Ann Arbor is considering allowing new dispensaries in the downtown, unlike Lansing.

 

"We focused always on not treating medical marijuana as if it were different from any other activity. It's just a business," Briere said.

 

But when Briere told dispensary owners they may have to move locations based on where the city ultimately allows dispensaries, she said they were receptive to the idea.

 

"I empathize with the business owners who may find themselves in the wrong zone but I don't feel any unit of government owes them an apology that they're in the wrong zone," she said. "They were very grateful anyone bothered to care about their financial well-being," she said.

 

Robin Schneider, president of the Capitol City Compassion Club, a nonprofit dispensary at 2010 E. Michigan Ave., called Lansing's proposed ordinance "not acceptable" and "a joke" if it forces people to move. She said she doesn't have a problem with it in "its entirety other than the fact it doesn't say existing businesses are grandfathered in."

 

"As long as they do that I won't have much of a problem with it," she said.

 

Leo Jerome owns two properties listed in Lansing's moratorium - 3165 E. Michigan Ave. and 6420 S. Cedar St. - but no businesses are operating there. Jerome has attended several Public Safety Committees over the past few months when medical marijuana was on the agenda. He was at the Public Safety Committee meeting Thursday because he's considering potential investors who may want to open a business at his properties.

 

He's hoping the city thinks twice about forcing businesses to move and limiting them to industrial areas.

 

"We filled up a bunch of empty stores on the main drags. Now you're going to take these stores and make them empty again?" he said. "And does it have to be in an industrial zone? Why put them in the side alleys?"

MAP posted-by: Richard Lake

Edited by greenbuddha
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