Kalispell may ban land use for marijuana

If the Kalispell City Council approves the first reading of a proposed law Monday night, the city could be on its way to an outright ban on growing or selling medical marijuana on land anywhere in city limits.

Monday’s discussion follows Wednesday’s decision by Flathead County commissioners to take no action on medical marijuana regulations beyond existing zoning laws. Several weeks ago, Columbia Falls council members agreed to rely on existing zoning rather than enact special provisions for medical marijuana.

Kalispell’s zoning text amendment — on the council agenda for its first reading Monday night — rules out any use of land that violates federal, state or local law.

The federal government still classifies marijuana as an illegal drug, even though the Obama administration announced last fall it won’t enforce the law in states that have legalized its medical use. Montana voters approved medical marijuana in 2004.

The hitch is that future administrations could reverse that policy and the city’s zoning law would directly contradict federal practice, City Attorney Charles Harball has cautioned.

Nearly all federal grants, loans and other agreements the city enters into require that the city follow federal, state and local laws.

That could jeopardize future funding and even result in the city being asked to repay federal money already received, Harball said on Feb. 16. That’s when the council enacted a 90-day moratorium on new medical marijuana businesses.

The moratorium expires May 17.

With its February vote, the council sent the issue to the Planning Board to craft a zoning regulation and bring it back to the council for a vote.

The proposed law modifies Chapter 27 of Kalispell City Code with the wording: “No use of land shall be permitted or conditionally permitted within the city of Kalispell that is in violation of federal, state or local law.”

Along with the proposed ordinance, Harball provided legal opinions on specific questions the council asked:

n What is the city’s authority and legal rationale for regulating private land use?

Zoning code, which restricts uses on private property, is authorized under Montana law and generally is allowed if it’s for the public good and doesn’t unfairly devalue a landowner’s property, Harball wrote.

The council should consider public health, safety and general welfare related to using property for growing or selling marijuana, and how regulation affects the land’s economic viability.

n What land-use regulation issues should the council consider?

Outside its medical use, marijuana’s manufacture, sale and use still is illegal in Montana and on the federal level.

Harball wrote that Kalispell police and other law enforcement agencies say the state law’s vagueness makes it hard to enforce marijuana laws, and that they fear failure to regulate it inside the city could further compromise public welfare.

n Is the city legally required to permit medical marijuana facilities?

If an activity is legal, such as an adult book store, Harball said it must be allowed in appropriate areas of the city. Illegal uses, such as a brothel, don’t have to be allowed anywhere.

Medical marijuana is legal in Montana yet illegal at the federal level, but no federal court has taken up the issue of whether federal law pre-empts state law.

If the city outlaws land uses for marijuana, Harball said, it may lose a court challenge and be forced to allow them. But if the city permits marijuana land uses, it may lose federal funding — or it could decide to buy out the businesses forced to close if the city wants to regain federal funding.

n To what extent do existing medical marijuana facilities have a right to stay?

Harball likened this to the city’s decision some years ago to ban billboards along Main and Idaho streets.

The city had to pay billboard owners for the loss in value or let them put up billboards elsewhere. With marijuana facilities, the city could negotiate a buyout or grandfather them as nonconforming uses, he said.

Whether they opened before or after the city approved such facilities could have a major impact on federal funding decisions.

n Would restricting land uses for marijuana also ban medical marijuana entirely in the city?

Harball said zoning regulates only the use of land, not the use of medical marijuana.

Police will continue to enforce the laws as written for legal medical use and for illegal use. Only when a caregiver gets into the business of using his property to grow and manufacture marijuana for others does it step over the boundary of a person growing or using it at home, he said.

If the caregiver delivers it to a patient’s home, it doesn’t alter the status as a private home. But if patients buy and pick up the marijuana at the caregiver’s home, it becomes a regulated business.

During Monday’s discussion, if the council decides to permit medical marijuana land uses in the city, Harball said, the staff will discuss neighborhood impacts and appropriate zoning.

If the first reading of the proposed ordinance is approved, it will go up for a second reading before it can be adopted as city law.

Also on Monday night’s agenda is a discussion about whether to distribute money in the Westside Tax Increment Financing District.

The council meeting starts at 7 p.m. in City Hall Council Chambers.

After the regular meeting adjourns, the council will hold a work session to continue a point-by-point discussion of the zoning ordinance update.

Reporter Nancy Kimball can be reached at 758-4483 or by e-mail at nkimball@dailyinterlake.com