Medical Marijuana Zoning Heads to Council

Ann Arbor Planning Commission meeting (Oct. 5, 2010): Zoning for medical marijuana businesses was the main agenda item for the commission’s Oct. 5 meeting. The issue drew more than a dozen people to council chambers, and six people spoke at a public hearing on the topic.

The draft ordinance that was ultimately approved unanimously, and forwarded to the city council, contained several changes from the version that the commission considered at its Sept. 21 meeting. During the Oct. 5 deliberations, commissioners also approved three out of four proposed amendments, some of them in response to input from the public.

In a separate vote, the commission approved a motion to recommend that the city council institute a medical marijuana business license. Eric Mahler cast the lone vote of dissent. There was little discussion and no details about what the license would entail, aside from a general intent “to address issues that fall outside the scope of the zoning ordinance, such as building security and code compliance for electrical use, fire suppression, and ingress/egress.”

Commissioner Jean Carlberg questioned Kristen Larcom of the city attorney’s office about whether the license would only apply to dispensaries, or if it would be required of cultivation facilities and “home occupation” businesses as well. In reply, Larcom said she didn’t know – they hadn’t yet drafted it. Commissioner Kirk Westphal asked if the license might include a cap on the number of dispensaries in the city – Larcom said that it might.

In their final item of business, planning commissioners unanimously agreed to reconsider a petition they had rejected at their Sept. 21 meeting – to a special exception use that would allow for the expansion of Arbor Dog Daycare, a business located at 2856 S. Main St., near the corner of Eisenhower. They then immediately tabled action on the item until their Oct. 19 meeting. The owners spoke during public commentary urging commissioners to reconsider, but later in the meeting commissioner Jean Carlberg said she’d spent more than an hour in the neighborhood near the business, and was disturbed by the level of noise coming from barking dogs there.

Medical Marijuana Zoning, Licensing

Jill Thacher of the city’s planning staff has been researching the medical marijuana issue, and gave the staff report on the proposed zoning ordinance. She reviewed the substantive changes made since the previous version, which had been presented to the commission at their Sept. 21 meeting. [Some of these changes were amended by the commission later in the meeting.]

Highlights of the changes include:

• The definition of drug paraphernalia was removed.
• The definition of a medical marijuana cultivation facility was changed from three or more caregivers growing plants to anyone growing more than 72 plants. This reflects changes to the home occupation language, which has been capped at 72 plants per single-family dwelling.
• The definition of dispensary was changed to include all caregiver transfers of medical marijuana that are not home occupations.
• The requirement of a 200-foot buffer between dispensaries and residential properties was removed.
• C1 (local commercial) zoning districts were added to the list of permitted districts for dispensaries.
• The 500-foot spacing requirement was removed. Previously, no dispensary or cultivation facility could be located within 500 feet of another dispensary or cultivation facility.
• The requirement that operators of a dispensary or cultivation facility be caregivers was removed.
• The restriction on sales of drug paraphernalia has been removed – state law allows such transfers to medical marijuana patients from caregivers, and it was deemed unnecessary.
• Previously, only two caregivers were allowed per single-family home. That was changed to a maximum of 72 plants, regardless of the number of caregivers living there.
• The number of trips allowed was changed to be the same as for all home occupations: 10 trips per day, or 5 round trips. A restriction on picking up medical marijuana – forcing caregivers to deliver the product – was removed. This change acknowledged the fact that some patients prefer to pick up their medical marijuana, in order to keep their addresses confidential. [Commissioners later voted to put that restriction back in place.]
• The section on medical marijuana in dwellings other than single-family homes was clarified to say that patients in any zoning district may grow their own 12 plants in their dwelling unit, with the same restrictions on odor, etc., as dispensaries, cultivation facilities, and home occupations.

In addition, Thacher noted several other items in the draft ordinance. They include:

• Cultivation facilities are defined as anyone growing more than 72 plants, and a dispensary is defined as any number of caregivers that are not operating as a home occupation.
• All dispensaries and cultivation facilities in C (commercial) districts must meet minimum parking requirements, without exception.
• Dispensaries and cultivation facilities are excluded from O (office) districts. The rationale given in the staff report is the retail and agricultural nature of dispensaries and cultivation facilities, and the large number of more appropriate zoning districts in which these uses would be allowed.
• The requirement that medical marijuana dispensaries and cultivation facilities be located outside of 1,000-foot drug-free school zones remains in place.
• Smoking, inhalation, and consumption of medical marijuana is prohibited at dispensaries and cultivation facilities to minimize conflicts with neighbors.
• Written permission of the property owner was proposed to be required, so that landowners know up front before the lease is signed that the proposed use is one that is deemed legal by the state, but not by the federal government. [Commissioners later deleted this requirement.]
• Zoning compliance permits are required annually for dispensaries, cultivation facilities, and home occupations. This is to insure compliance with zoning ordinances, and involves filling out an application and submitting a fee (currently $50). There is no inspection of the premises associated with a zoning compliance permit.
• The staff report stated that outdoor growing and dispensing of medical marijuana is undesirable as a land use because of the controls required to secure the area.
• The language on noise, odor, and other restrictions for dispensaries, cultivation facilities, and home occupations is taken directly from the language for general home occupations.

Staff recommended approval of the zoning ordinance. [.pdf of draft ordinance, with revisions noted]

Medical Marijuana Zoning: Public Hearing

Six people spoke during a public hearing on the topic, including several who had spoken at the Sept. 21 meeting. Before they began, commissioner Erica Briggs asked whether it was possible that they not state their address – typically, speakers are asked to give their street address. At the public hearing on Sept. 21, Eric VanDussen of Traverse City told commissioners it was asinine for speakers to be required to state their home address – the meeting was broadcast on live TV, and many of the speakers grow medical marijuana in their homes.

At the Oct. 5 meeting, Wendy Rampson, head of the city’s planning staff, said the point of stating an address was to indicate whether the speaker has a stake in the community. Though it’s not required by law or by the commission’s bylaws, it’s been the commission’s practice, she said. Ultimately, she added, it was up to the speaker as to whether they wanted to comply.

Mark Curtis of Spring Arbor, Michigan, said he had emailed commissioners and wanted to reiterate some points in his letter. He thanked commissioners and staff for doing their research by visiting some local dispensaries. He’d heard on NPR recently that California is considering legalizing recreational marijuana, and that it could bring in more than $17 billion in tax revenue. That’s something that Michigan should think about, he said. The state is losing other industries, but “this is a bird in the hand,” he said. Curtis noted that such funding could help pay for projects like Fuller Road Station, which the planning commission had approved at its Sept. 21 meeting. [At that meeting, Fuller Road Station was on the agenda prior to consideration of the medical marijuana zoning, so marijuana activists sat through lengthy deliberations on that project.]

Chuck Ream said he was speaking on behalf of the Ann Arbor Coalition for Compassionate Care, and wanted to thank the compassionate and intelligent voters of Ann Arbor who voted to make the “ancient cannabis herb” available to patients. He also thanked city council and the planning commission, saying they’d shown extraordinary intelligence, common sense and a willingness to listen. However, he still had several concerns. The parking requirements for cultivation facilities makes no sense, he said. He objected to requiring that dispensaries or cultivation facilities get written permission from their landlords, saying that by doing so, landlords would be violating federal drug laws and incriminating themselves. He suggested instead saying that the lease was for “uses that are safe, clean and legal under Michigan law.”

Ream objected to the entirety of section 5, which covers zoning of home occupations. This is already covered by state law, he said. Further, city council didn’t ask for input regarding licenses or new regulations on home occupations, Ream said. The regulation requiring a zoning compliance permit would be immediately litigated, he contended – no other home occupation requires this kind of permit, so it’s clearly discriminatory against medical marijuana providers. He also argued that requiring caregivers to divulge their locations would be terrifying to them, and illegal as well.

Michael Meade cited several objections to the draft. He argued that the city had created a new definition of “home occupation,” with rules tied to that. But growing medical marijuana is an activity for caregivers and patients – it’s not a business activity, and is no different than having a sewing room or a home gym, he said. Meade contended that the section laying out a rationale for restricting the number of plants to 72 per dwelling, regardless of how many caregivers live there, is not based on evidence or science. Finally, requiring patients and caregivers to file an annual zoning compliance permit violates their privacy, he said – it’s not required by state law. Meade urged commissioners to postpone action until these issues could be addressed – the ordinance is too important to rush though without careful consideration.

Michael McLeod said he represented the Ann Arbor Medical Marijuana Patients Collective and the Green Planet Patient Collective – representing 2,000 medical marijuana patients. In addition to the zoning districts that are recommended for dispensaries, planned unit developments (PUDs) need to be included, he said. The Green Planet Patient Collective is located in a PUD at 700 Tappan, in an area that’s been approved for other retail uses. He also argued that office districts should not be excluded, since dispensaries do not serve the general public and are ideal for meeting patients in private settings like offices. Nor should cultivation be prohibited from office districts, McLeod said, since it’s a private activity that involves only a few people. McLeod also objected to the requirement that landlords give prior express written permission to use their property for a dispensary or cultivation facility, saying that if landlords are forced to incriminate themselves – medical marijuana is still illegal under federal law – it will have the effect of excluding all rental property for use by medical marijuana businesses.

Gersh Avery of Dexter raised the confidentiality issue. When he brings it up, he said, typically people think he’s talking about HIPAA laws and regulations, but he’s not. The state licensing records are subject to rules of confidentiality written into the Michigan medical marijuana act, he said. That law states that if someone divulges information about patients or caregivers, they’ll be guilty of a criminal offense that they could go to jail for. This is not something that’s being made clear by groups like the Michigan Municipal League, he said. So government employees who handle this information – divulging it by putting it into a computer system, for example, where other could access it – could go to jail for six months and get fined up to $1,000. Whatever licensing or registration is required by the city, they’re opening up employees to this risk. The law hasn’t been tested yet, he said, adding that it will be tested eventually by arresting a government employee who handles this confidential information. He urged Ann Arbor not to put something into place that would make local government employees one of those test cases.

Dennis Hayes said he represented the Ann Arbor Medical Marijuana Patients Collective, and joked that they should be on a first name basis by now, since he’d spoken to commissioners so frequently. He thanked commissioners and staff for their work, and especially for taking a tour of some of the city’s dispensaries. Regarding the proposed ordinance, he objected to the exclusion of office districts from allowable zoning for dispensaries, arguing that it would be a low intensity use and not out of place there. He said it would be useful for patients to have as much access as possible, and the city ought to encourage the use of locations to facilitate that goal. He also said he agreed with Chuck Ream regarding the parking requirements – it was hard to wrap their heads around why cultivation facilities needed to meet the minimum parking requirements for a retail use, he said – traffic to those facilities would be minimal. But overall, “we’re almost there,” Hayes said, referring to a final version they could support.

Medical Marijuana Zoning: Commissioner Amendments

Commissioners had a wide-ranging discussion about the proposed ordinance, and ultimately considered four amendments.

Amendment: Restore the 500-foot spacing requirement between dispensaries or cultivation facilities

Kirk Westphal asked what drove the change to eliminate that requirement from the original draft. Jean Carlberg responded, saying that at their Sept. 21 meeting, the planning commission had approved a request for Lake Trust Credit Union to be located at an intersection with two other banks. That didn’t seem like too much saturation, she said. And after visiting some dispensaries and seeing no impact on the neighborhood, it was hard to justify putting the restriction on medical marijuana businesses when other businesses didn’t have that requirement. Westphal clarified that they had considered the potential security risk.

Westphal noted that the medical marijuana sector is in flux, with new businesses opening and price levels fluctuating. It seemed to him that the 500-foot space requirement was one way of stabilizing it.

Evan Pratt said he didn’t feel the 500-foot requirement was onerous – you could still have plenty of medical marijuana businesses in the city, he said.

Erica Briggs said she wasn’t inherently opposed to the requirement, but it seemed like they were trying to solve a problem that didn’t exist, and creating hurdles that they don’t need. She said she’d feel comfortable revising the ordinance later to include the requirement, if it became necessary.

Diane Giannola said the spacing requirement seemed like a good intermediate step – it would be hard to undo later, she said. Eric Mahler disagreed, saying it would be easier to leave out, then revise if they needed to. He couldn’t find a rationale for the 500-foot measurement – why not 400 feet, or 600? He thought the market would sort itself out.

Pratt sketched out a scenario in which several dispensaries opened on the same block. If some of them failed, other businesses might be leary of opening there. Sprinkling the medical marijuana businesses throughout the city seemed like a better approach. He also said he wasn’t a big fan of having three banks on the same street corner, either.

Westphal noted that they’d received a letter from a proponent of medical marijuana, who argued in favor of having a few well-regulated dispensaries rather than several that might not be in business very long. He proposed an amendment to restore the requirement.

Outcome: The proposed amendment to reinstate a 500-foot distance between dispensaries or cultivation facilities failed on a 4-4 vote. Voting for the amendment were Giannola, Mahler, Pratt and Westphal. Voting against it were Bona, Briggs, Carlberg and Derezinski. Wendy Woods was absent.

Amendment: Remove the requirement that property owners give their prior express written permission to lease to a dispensary or cultivation facility.

Erica Briggs proposed this amendment. Jean Carlberg made a friendly amendment to the amendment, which Briggs accepted, to simply remove the words “prior express written” – that would eliminate the concern of self-incrimination, but signal a desire for the landlord and tenant to communicate about the nature of the business.

Bonnie Bona said she’d just prefer to remove the whole requirement – they don’t have responsibility to manage the landlord/tenant relationship. Carlberg withdrew her amendment.

Kirk Westphal said he was fine with removing this requirement, but he hoped that the city would do some kind of outreach to landlords on this issue, as a community service.

Outcome: The amendment passed, with dissent from Derezinski. Wendy Woods was absent.

Amendment: Add planned unit development (PUD) as a permitted zoning district, where retail is permitted in the supplemental regulations.

When Bonnie Bona proposed this amendment, Erica Briggs noted that they hadn’t discussed allowing dispensaries in a residential area. Bona noted that dispensaries are allowed in C1 districts, which are adjacent to residential. They’re also allowed downtown, which has a mix of retail and residential uses, she said.

Outcome: The amendment adding PUDs as a permitted zoning district – where retail is permitted in the PUD’s supplemental regulations – passed, with dissent from Pratt and Briggs. Wendy Woods was absent.

Amendment: Restore a home occupations provision that stated: “No transfer of medical marijuana to patients other than those residing on the parcel shall occur on the parcel.”

Kirk Westphal said that under the previous draft, which required that people growing medical marijuana as a home occupation deliver their product to patients, there wouldn’t have been a problem with traffic. But without that provision, he was concerned that traffic would be an issue in residential areas.

Westphal said he understood the patients’ concerns with confidentiality – wanting to keep their addresses private, and preferring to pick it up rather than have it delivered. But in that case, he observed, they could go to a dispensary instead. Especially since there had been complaints about people smoking in cars outside of the home occupation residences, it seemed better to be more conservative – there’s too much potential to burden neighbors, he said.

Diane Giannola wondered what recourse there’d be if neighbors had a problem. Wendy Rampson, head of the planning staff, said the city would prefer if the person with a complaint dealt directly with their neighbor. Otherwise, they could complain to the planning staff and it would be handled like any other zoning ordinance complaint. The staff would investigate, and if they found that the home occupation was out of compliance, they’d send warning letters and meet with the subject of the complaint. It’s a civil infraction, and the violator could be ticketed each day they’re out of compliance, with a fine of up to $500.

Outcome: The amendment passed, with dissent from Carlberg, Derezinski and Mahler. Wendy Woods was absent.

Commissioners then voted on the ordinance as amended.

Outcome: The medical marijuana zoning ordinance was unanimously recommended by the planning commission for subsequent approval by the city council. Wendy Woods was absent.

Medical Marijuana Licensing

The commission considered a second motion related to medical marijuana:

The Ann Arbor City Planning Commission hereby recommends that the Mayor and City Council institute a medical marijuana business license to address issues important to the health, safety, and welfare of residents but outside of the scope of the zoning ordinance, such as security, building safety, and other code compliance.

There were no additional details in the planning staff report about a possible license. Although it had been mentioned at previous meetings that the city attorney’s office was developing a proposal about licensing medical marijuana businesses, planning commissioners had not previously discussed the topic in depth.

Deliberations were brief. Jean Carlberg asked whether a license would only apply to dispensaries, or if it would be required of cultivation facilities and “home occupation” businesses as well. Kristen Larcom of the city attorney’s office said she didn’t know, because they hadn’t yet drafted a proposal for the license. Kirk Westphal asked if the license might include a cap on the number of dispensaries in the city, or require that there be building security. Larcom said that it might.

Outcome: In a 7-1 vote, the planning commission approved a motion to recommend that city council institute a medical marijuana business license. Eric Mahler dissented, and Wendy Woods was absent from the meeting.

Mahler did not comment during the public meeting on this issue. When asked by The Chronicle following the meeting about his reason for voting against it, Mahler indicated that they didn’t know what the license would entail at this point, and it was difficult to support something without that information.

Arbor Dog Daycare Expansion

At its Sept. 21 meeting, the planning commission rejected a petition from the owners of Arbor Dog Daycare to expand their facility, which is located at 2856 S. Main St., near the corner of Eisenhower. The primary concern from some commissioners had been noise complaints from neighbors, who objected to the amount of barking from dogs in an outdoor dog run.

The request had been for an amendment to the firm’s existing special exception use, which would have increased the firm’s square footage within an existing building from 3,200 square feet to a maximum of 8,800 square feet, extended the hours of operation and allowed a maximum of 125 dogs on site, with no more than 25 dogs outside at any one time.

At the Oct. 5 meeting, owners Jon and Margaret Svoboda returned to the commission to ask for reconsideration of their petition.

Arbor Dog Daycare: Public Commentary

Margaret Svoboda, one of the owners, asked commissioners to reopen the firm’s petition, saying she believed there was a misunderstanding at the last meeting about what the commissioners were voting on. She said she made a video that was taken outside in various areas near the business, to demonstrate that the barking wasn’t a problem. She said she thought they could work with the commission to address any remaining concerns, and that they had received an outcry of support after their petition had been rejected in September.

Jon Svoboda also addressed the commission, referring them to a letter he’d sent to commissioners following last month’s meeting. [.pdf of letter] He said he understood that to reopen their petition, they’d need to get a unanimous vote from commissioners, and he asked them to allow the petition to be reconsidered. After meeting with representatives from the neighborhood condo associations and getting their buy-in, Svoboda said, he had thought they had addressed the neighbors’ concerns. He noted that they had planned to have the same number of dogs outside at any one time – 25 – but now were proposing to reduce that number to 20. “I’m really putting myself at your mercy,” he said.

Two women spoke in support of the firm’s expansion, including Linda Coon, who made the same economic development argument that she’d stated during public commentary at the Sept. 21 meeting. The expansion would bring more jobs to this area, she said, which is a win-win.

Arbor Dog Daycare: Commissioner Deliberations

Diane Giannola moved that the commission reconsider the Arbor Dog Daycare petition – a motion to reconsider must be made by someone on the prevailing side of the vote, and Giannola had voted against it.

Outcome: Planning commissioners voted unanimously to reconsider the Arbor Dog Daycare petition.

Bonnie Bona said she’d like additional time to view the video that the Svobodas made, as well as to review previous documents related to the petition.

Kirk Westphal said it would make him feel more comfortable if people in the neighborhood could be notified again that the expansion was being reconsidered. Wendy Rampson, head of the city’s planning department, said they would notify everyone within 300 feet of the business, as well as members of the neighboring condo associations.

Jean Carlberg then told her colleagues that she’d spent about 90 minutes near the business earlier in the day, to hear for herself what the noise levels were like. Unfortunately, she said, what she heard was almost continuous barking. It was very clear from the nearby Balmoral Park condominium complex, she said, which is north of the business. “And I don’t have sensitive ears,” she added. None of the barking dogs were taken back inside, she noted, and that’s way too long to have to listen to barking dogs. She said she doesn’t have a problem with keeping the dogs inside.

Outcome: The commission voted unanimously to table action on the item until their Oct. 19 meeting.

Present: Bonnie Bona, Erica Briggs, Jean Carlberg, Tony Derezinski, Diane Giannola, Eric Mahler, Evan Pratt, Kirk Westphal.

Absent: Wendy Woods

Next regular meeting: The planning commission next meets on Tuesday, Oct. 19 at 7 p.m. in the second-floor council chambers of city hall, 100 N. Fifth Ave. [confirm date]