HomeMy WebLinkAboutDiscussion and Request for Direction to Staff Regarding Medical Marijuana.pdf1
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Greg Sullivan, City Attorney
Marty Kent, Interim Police Chief
Chris Saunders, Interim Planning Director
Chris Kukulski, City Manager
SUBJECT: Request for direction to staff regarding medical marijuana
MEETING DATE: March 1, 2010
AGENDA ITEM TYPE: Action.
RECOMMENDATION: Staff recommends the Commission direct staff to work with interested
parties to determine proper long-term regulatory conditions for the medical use of marijuana in
Bozeman. In addition to this long term approach, staff recommends the Commission consider
whether to direct staff to develop and present to the Commission an interim/emergency
ordinance to regulate: (i) the production, processing and location of medical marijuana
dispensaries; and/or (ii) the parameters of public use. The purpose of any interim/emergency
ordinance would be to provide time to city staff to research options and alternatives as well as to
define what the best practices for the City of Bozeman will be.
If the Commission is inclined to develop an interim/emergency ordinance, Staff recommends the
Commission consider the enactment one of three options related to dispensaries: (i) a six (6)
month moratorium on allowing additional dispensaries to be licensed within the city limits; (ii) to
require a Conditional Use Permit (CUP) as the defined review process for dispensaries; or (iii)
require a defined distance separation (e.g. 1000 feet) from uses considered potentially sensitive
to the presence of dispensaries, e.g. schools and parks.
BACKGROUND: The Staff considers medical marijuana a critical public policy discussion for
two primary reasons. First, Staff is interested in protecting the legitimate legal use of medical
marijuana. The issues Staff feel must be addressed through policy discussion include the
cultivation, dispensing, and consumption of medical marijuana. Second, staff is concerned with
balancing the health and safety of residents and property owners who are not interested in being
exposed to medical marijuana with the legitimate use of medical marijuana.
On November 2, 2004, 62% of Montana voters acted to approve initiative 148 allowing for the
use of medical marijuana. This initiative enacted a state law now codified at Title 50, Chpt. 76,
MCA with certain requirements for state review and issuance of permits for the cultivation,
provision, and consumption of medical marijuana. The law does not give specific direction or
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guidance on how local governments may address areas of local concern such as zoning, business
licensing, local clean air regulations, or enforcement of already existing laws as they pertain to
the use, consumption and distribution of medical marijuana.
Recent changes in federal policy regarding the prosecution of individuals authorized by state law
to possess or manufacture medical marijuana has resulted in a significant increase during the past
year in the number of licensed caregivers and qualifying patients. As a result of this increase, the
visibility and potential community impacts have also increased. A number of concerns, both
perceived and realized, related to medical marijuana have been identified. Although listed
separately below, the identified concerns cross departmental and agency boundaries.
Staff provides the following brief discussion on various questions and potential issues. The
following list is not exhaustive as issues related to building permitting will also need to be
addressed. As you read the information provided below please understand staff has learned much
about this issue during the past several months; however, there are certainly experts in the
medical use of marijuana and in the cultivation, dispensing, and consumption of medical
marijuana that may be better suited to respond to your more detailed questions. Staff is in the
process of seeking out those with greater information on this issue and requesting their presence
for your meeting on Monday night.
Potential issues/questions related to zoning:
Commercial activities – These are activities which are done on behalf of others rather than for
oneself.
What is the appropriate classification of use and the proper location of those uses within
the City’s structure of specified zoning districts? Different aspects of medical marijuana
from its growth to distribution may meet several existing definitions within the zoning
ordinance, see Chapter 18.50, BMC; e.g. agriculture, manufacturing, medical office, and
retail. These uses are broadly defined and are assigned to zoning districts which may or
may not be appropriate to medical marijuana. If a use is not able to be defined as meeting
an existing definition then it may not be approved until a text amendment is processed
authorizing it, see Section 18.14.050, BMC. Presently, Staff is relying upon the general
definitions in evaluating requests for business licenses and site development applications.
Physical location within mapped zoning districts – Should there be a required spacing
between dispensaries and other uses allowed in zoning districts such as schools? Spacing
is a common means of separation of uses considered as incompatible to each other while
still allowing opportunities to pursue locations in the community that are zoned
appropriately for either individual use. Special standards can be adopted that are
performance oriented and address public concerns. For example the restriction on ground
floor offices in a portion of the B-3 zoning district, see Section 18.18.010.C and Table
18-1 with footnote 3, BMC.
Home based businesses are commercial activities allowed within dwellings and
residential zoning which are accessory or incidental to the residences. There are strict
limits to home occupations and some activities are specifically prohibited. Could a home
occupation include the growth or distribution of medical marijuana? The present
understanding is that it may not. Medical offices are prohibited as a home-based business.
The question of home occupations is affected by issues such as vehicular traffic,
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electrical loading and proper wiring, and ventilation. The home occupation standards
presently in place have restrictions on these areas which would require ordinance
amendments. See Section 18.40.110, BMC (attached).
Personal Use – There are different issues related with the individual personal use of medical
marijuana than the more intensive commercial activities as it relates to the City’s adopted zoning
ordinances. Presently, the Staff relies on the general definitions as described above to allow
personal use within residential areas. The Commission may direct the personal use to be included
within a possible interim or long-term ordinance if they believe it necessary. As discussed above,
the primary zoning issues relate to commercial activities rather than personal activities.
Potential issues/questions related to Law Enforcement:
Montana law includes both the authorization for medical marijuana and a prohibition on the
possession and use of marijuana. It is important that the community understand and City
regulations reflect a clear distinction between what is allowed under the law and what constitutes
illegal possession of dangerous drugs. This affects traffic enforcement, understanding process for
registration (including consequences of the lapse of registration) of users and caregivers, and
coordination with other law enforcement agencies with which the City has long standing
operational cooperation.
Potential issues/questions related under the City Attorney:
In addition to the concerns listed under planning and law enforcement above, the City Attorney’s
Office is concerned that the authorizing statute has specific terms for some items but leaves gaps
or areas which are not clear. For example, the interaction between the medical marijuana
authorization and state and local laws on clean indoor air and driving while under the influence
may need to be examined. Additional investigation is needed to understand these interactions.
The City has a prohibition on open containers of alcohol. A question that has been identified is
whether a similar prohibition on methods of consumption for medical marijuana should be
instituted. The purpose of such a regulation would be to protect citizens who are not interested in
being exposed to medical marijuana. It is important to note that the use of medical marijuana is
specifically prohibited in the state law in public parks, schools, and other defined areas.
Another important legal concern relates to a potential conflict between the statutory
confidentiality of medical marijuana caregivers and qualifying patients and public record
requirements. The statute contains protections for privacy of properly registered users of medical
marijuana. There is a question on the extent to which privacy protections for caregivers are
extended and how such privacy may be affected by the requirements for open public records in
City operations.
The statute clearly authorizes possession of medical marijuana, as plants or processed goods, by
registered users and caregivers. A commercial relationship between the two parties is expected
allowing the exchange of medical marijuana. There does not appear to be statutory authorization
for third party exchanges between caregivers or contractors who may be acting on behalf of a
caregiver to grow plants or conduct deliveries. Research and coordination is needed to
understand and clarify how activities actually occur and what ramifications may result from
possession or exchange other than between one registered caregiver and those allowed by the
state authorizing statute to obtain medical marijuana from them.
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Interim/Emergency Ordinance:
If the Commission is interested in pursuing an interim/emergency ordinance we provide the
following for your consideration. The process for an interim zoning ordinance is established in
Section 76-2-306, MCA. The section allows the adoption of a zoning ordinance through an
expedited process but the ordinance has a limited duration (six months). The purpose is to create
a short-term ‘hold’ while a community researches an issue and prepares a thoughtful and
appropriate response to an unexpected land use issue. The City has used interim zoning multiple
times in the past. Reasons have ranged from changes in federal law to site development
applications with exceptional community impact.
An interim zoning ordinance may be adopted for not more than 6 months initially. There are
provisions to extend the interim if needed but extensions are also limited in duration. The formal
zoning process is time consumptive to ensure opportunity for public participation and discussion
of possible legislative action. Minimum steps required include:
· Formal public notice not less than 15 days before a public hearing;
· Public hearing by the Zoning Commission and recommendation to the City
Commission
· Public hearing by the City Commission;
· First Reading of a draft ordinance;
· Second Reading of a draft ordinance not less than 12 days after the 1st reading;
· Effective date not sooner than 30 days after the 2nd reading.
If the Commission is interested in pursuing an interim/emergency ordinance for items other
than those directly related to zoning (such as use in public places) the statutory authority rests
in Sect. 7-5-4204 and 7-5-104, MCA.
7-5-4204. Details relating to emergency measures. In the case of emergency measures, the emergency
must be expressed in the preamble or in the body of the measure and the measure must receive a two-thirds
vote of all the members elected. In emergency ordinances, the resolutions shall include only such measures
as are immediately necessary for the preservation of peace, health, and safety and shall not include:
(1) a franchise or license to a corporation or individual;
(2) any provisions for the sale of real estate;
(3) any lease or letting of any property for a period exceeding 1 year; or
(4) the purchase or sale of personal property exceeding $5,000 in value.
7-5-104. Emergency ordinance. In the event of an emergency, the governing body may waive the
second reading. An ordinance passed in response to an emergency shall recite the facts giving rise to the
emergency and requires a two-thirds vote of the whole governing body for passage. An emergency
ordinance shall be effective on passage and approval and shall remain effective for no more than 90 days.
As noted above, in order to adopt an ordinance related to public uses of medical marijuana, for
example, the Commission may need to follow the above guidelines including a two-thirds vote.
Collectively, including time for preparation of minutes of public hearings, provision of
information to City Commission packets, etc., the formal zoning ordinance process requires three
months time. If an interim zoning ordinance was adopted it would leave approximately 90 days
to have a community conversation with a very diverse group of interests and conduct the
necessary research to prepare the ordinances which will be the subject of the public hearings. If
the Commission concludes at any point during the process that long term ordinance changes are
not necessary they may terminate the interim ordinance.
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If the Commission directed the preparation of an interim ordinance, staff would prepare the
ordinance and give formal public notice of the Commission’s intent to consider the interim
ordinance. A minimum of 7 days notice must be given. Considering the Commission’s schedule
of meetings and the process for publishing notice, the soonest an interim ordinance could be
considered would be March 22nd.
FISCAL EFFECTS: None anticipated at this time beyond the commitment of staff resources to
research and possible ordinance drafting.
ALTERNATIVES: Other actions s as suggested by the City Commission.
Attachments: None
Report compiled on: February 24, 2010
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18.40.110 HOME BASED BUSINESSES
A. Generally. A home based business is a use that is considered accessory to a dwelling unit. Buildings
combining live/work arrangements located in districts where both the residential and
nonresidential uses to be combined are permitted are not subject to the requirements of this
section.
B. Home Based Business as Accessory Use
1. The use shall be clearly incidental and secondary to the use of the dwelling for residential
purposes and shall not change the character of the dwelling or adversely affect the uses
permitted in the residential district of which it is a part. The home based business may
not be conducted in an accessory structure, and shall comply with the standards of
subsection C below.
2. Purpose. It is in the intent of this section to eliminate as accessory home based businesses for
all uses except those that conform to the standards set forth in this section. In general,
an accessory home based business is a use so located and conducted that the average
neighbor, under normal circumstances, would not be aware of its existence with the
exception of permitted signage as allowed by Chapter 18.52, BMC. The standards for
home based businesses included in this section are intended to insure compatibility with
other permitted uses and with the residential character of the neighborhood. A clearly
accessory or incidental status in relation to the residential use of the main building is the
criteria for determining whether a proposed accessory use qualifies as an of right home
based business.
3. Necessary Conditions for Accessory Use. Accessory home based businesses are permitted
accessory uses in residential districts only so long as all the following conditions are
observed:
a. Such home based business shall be conducted by resident occupants in their residence
with not more than one on-premise halftime nonresident employee;
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b. No more than 25 percent of the gross area of all structures shall be used for such
purpose;
c. No use shall require internal or external alterations or involve construction features or
the use of electrical or mechanical equipment that would change the fire rating
of the structure;
d. No home based business shall cause an increase in the use of any one or more utilities
(water, sewer, garbage, etc.) so that the combined total use for dwelling and
home based business purposes exceeds the average for residences in the
neighborhood;
e. There shall be no outside storage of any kind related to the home based business;
f. The use may increase vehicular traffic flow and parking by no more than one
additional vehicle at a time. Depending on the individual circumstances of each
application, an additional off-street parking space may be required; and
g. No use shall create noise, dust, vibration, smell, smoke, glare, electrical interference,
fire hazard or any other hazard or nuisance to any greater or more frequent
extent than that usually experienced in an average residential occupancy in the
district in question under normal circumstances wherein no home based
business exists.
4. Notice of Intent to Operate an Accessory Home Based Business. Any individual applying for
a business license, with the intent of operating the business from his/her home, shall
acknowledge by signature his/her understanding of the requirements and conditions of
this title.
C. Home Based Business as Conditional Use.
1. Purpose. The use shall be secondary to the use of the lot for residential purposes and shall not
be incompatible with the character of the zoning district thereof or adversely affect the
principal uses permitted in the residential district of which it is a part. When a home
based business has been established through the CUP process, it means that the owner,
lessee or other persons who have a legal right to the use of the dwelling also have the
right to conduct the home based business whether in the principal or an accessory
structure. The home based business shall comply with the standards of subsection C.3
below.
2. Conditional Use. It is the intent of this section to provide, through the conditional use process
established in Chapter 18.34, BMC, opportunities for home based businesses which are
more intensive in nature than those which would be allowed as an accessory use. In
general, a home based business approved through the conditional use process is an
accessory use which complies with the requirements of this title and is subordinate to
the primary use of the particular lot for residential purposes. The standards for home
based businesses included in this section are intended to insure compatibility with other
permitted uses and with the residential character of the neighborhood. A secondary, but
not incidental, status in relation to the residential use of the main building is the criteria
for determining whether a proposed use may, under certain circumstances, qualify as a
home based business which may be approved by the conditional use process. As stated
in §18.34.010, BMC, conditional uses start from the presumption that they are
incompatible with the zoning district but may under specific and limited conditions
become compatible. Unless such conditions are found, there is no right to the practice
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of a home based business which does not comply with the terms of an accessory home
based businesses as listed in this section.
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3. Necessary Conditions for Conditional Use. Home based businesses permitted through the
conditional use permit process are allowed in residential districts only so long as all the
following conditions are observed:
a. Such home based business shall be conducted by resident occupants with not more
than one on-premise halftime nonresident employee;
b. No more than 30 percent of the gross area of all structures shall be used for such
purpose;
c. No use shall require internal or external alterations or involve construction features or
the use of electrical or mechanical equipment that would change the fire rating
of the structure beyond that allowed in a residential use;
d. No home based business shall cause an increase in the use of any one or more utilities
operated by the City of Bozeman so that the combined total use for dwelling
and home based business purposes exceeds the average for residences in the
neighborhood;
e. There shall be no outside storage of any kind related to the home based business;
f. No use shall create noise, dust, vibration, smell, smoke, glare, electrical interference,
fire hazard or any other hazard or nuisance to any greater or more frequent
extent than that allowed by this title;
g. Home based business by conditional use permit may only be allowed on lots occupied
by single-household detached dwellings;
h. Such conditional use shall be subject to all conditions set forth in this title, except the
provisions of §18.48.060, BMC, Landscape Performance Standards; and
i. All permits required by the City, including, but not limited to, building permits and
business licenses, shall be received prior to establishing the home based
business.
4. Home Based Business Allowed Through a Conditional Use Permit. Any individual seeking to
operate a home based business, which is greater in scope than that allowed by an
accessory home based business, shall make application for a conditional use permit
under the terms of Chapter 18.34, BMC. The Planning Director shall determine if a
home based business requires a conditional use permit.
D. Complaints. Complaints by citizens of Bozeman may be cause for termination of the home based
business. However, should such complaint be filed, the operator is entitled to an appeal to the
City Commission for a public meeting. The City Commission shall determine whether or not the
filed complaint identifies sufficient violation of this title to warrant termination or modification
of the home based business.
E. Uses That Are Prohibited. The following uses, by the nature of their character or the investment of
operation, have a pronounced tendency, once started, to rapidly increase beyond the limits
permitted for home based businesses and thereby impair the use and value of a residentially
zoned area for residential purposes. Therefore, the following uses shall not be permitted as home
based businesses: adult businesses; auto repair, minor or major; carpentry work; dance
instruction; dental offices; medical offices; mobile oil and lube services; painting of vehicles,
trailers or boats; private schools with organized classes; radio or television repair; and
upholstering.
F. Appeal to City Commission. Any person may appeal the Planning Director’s action relating to a
home based business to the City Commission as provided for by Chapter 18.66, BMC.
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