Kalispell mulls medical marijuana moratorium

Kalispell City Council will consider an emergency ordinance imposing a 90-day moratorium on medical marijuana businesses at its regular meeting Tuesday night.

It comes just as one medical marijuana business, The Golden Leaf, has announced its pending opening with a sign in the window of what used to be Kay’s Bridal Boutique, a half-block from the Montessori elementary school and across the street from Woodland Park. A second business in Evergreen is said to be in the works.

Planning Director Tom Jentz said Kalispell has no zoning ordinance dealing with medical marijuana — nothing to specify where it may be grown or sold.

City Attorney Charles Harball wrote in a Feb. 8 memo, “the presumption is that if the use is not listed in the code it is permitted in any zone.”

But without a clear policy direction on which zoning is most appropriate, the council will consider an immediate ban while the planning board looks into it.

Since a November 2004 vote decriminalized the use of marijuana for medical conditions in Montana, attention has been ramping up across the state.

As more Montanans receive permits to legally consume marijuana for medical purposes, “caregivers,” those who grow the marijuana, have set up operations.

Montana Caregivers Network hosted a Jan. 22 clinic at the Red Lion Inn in Kalispell for people seeking medical marijuana state registry cards but needing physician evaluations. A number of growers displayed samples of their medical marijuana at the event.

Whitefish, Great Falls and Billings city councils have imposed moratoriums while they study how to follow state law in their cities. Lewistown ruled out new dispensaries for the next six months.

It’s not yet an issue before the Columbia Falls City Council, but just last week the city received two applications for medical marijuana business licenses within a 24-hour period.

Columbia Falls City Manager Bill Shaw said that as long as a caregiver’s shop is located within a B-2 general business zone and is at least 600 feet from any school or church, it would be allowed under current city code.

Tuesday night’s proposal before the Kalispell council temporarily would prevent any land in city limits from being used by a caregiver to grow, manufacture, produce or distribute marijuana.

If approved, the ban would become effective immediately and the issue would be sent to the city Planning Board to begin work on zoning proposals. Any proposal will come back to the council for a final vote.

The council’s discussion is prompted in part by several citizens’ letters to the mayor and council protesting The Golden Leaf and its location.

One letter bearing 13 signatures state concerns about the store’s proximity to the Montessori school, Woodland Park, a School District 5 bus loading area across the street, the Scoreboard Pub and a mobile home park on College Avenue. The letter also cited traffic congestion and lack of parking at the former bridal shop.

Other letter-writers said they do not oppose medical marijuana businesses away from parks and schools, or a properly regulated source of the drug for those in chronic pain.

Harball said the council will have to proceed carefully to avoid interfering with an established business. Depending on how far the owner is into setting up the caregiver operation, he or she could claim to be grandfathered under present zoning laws.

Other difficulties arise, too, he said.

Harball said Montana’s Medical Marijuana Act is written so vaguely that it serves to weaken, rather than strengthen, efforts by law enforcement, city planners, employers and others to crack down on illegal marijuana use. For example, police can stop someone for driving impaired but, without something like a breathalyzer used to detect alcohol, marijuana is hard to detect.

The federal government still classifies marijuana as an illegal Schedule 1 drug with a high potential for abuse and no currently accepted medical use. But, Harball said, the Obama administration recently announced it would not take enforcement measures against medical marijuana use or the states that enforce it.

This muddies the water further.

Although the current administration takes a hands-off approach, the city attorney pointed out that future administrations may enforce it if the law has not changed. Since Kalispell accepts federal funding that requires the city to follow all laws, that scenario could end up forcing the city to repay federal money it already received.

He suggested a couple of remedies for discussion.

The council could adopt a preface to the zoning code saying that no property may be put to a use contrary to federal, state or local law, Harball said. It would effectively prohibit caregiver operations in the city.

Or it could treat medical marijuana similar to gambling facilities, making its production and sale a conditional use and requiring it to be a certain distance from schools, churches, parks or other uses that could be harmed by marijuana use.

The medical marijuana issue is on the council’s regular meeting agenda, along with Homeland Security grants for the fire and police departments and sale of city land to the Montana Department of Transportation for the U.S. 93 Alternate Route construction.

n The fire department won a $1.35 million grant to renovate Station 61, the downtown fire hall. It will pay to build additional space over the current floor where fire apparatus is kept, correct code deficiencies and create a public entry to the fire station.

n The Kalispell Police Department, along with the U.S. Border Patrol, Montana Highway Patrol and Whitefish police, won an Operation Stonegarden Grant through the U.S. Department of Homeland Security. Operation Stonegarden is aimed at stopping people who smuggle narcotics, illegal aliens, terrorists or weapons of mass destruction into the U.S. across the Flathead County border. Kalispell’s share is $33,000 for overtime and benefits, and $64,548 for equipment.

n The state highway department is offering $32,250 for a small portion — .23 acre — of the city-owned park in the Greenbrier subdivision. It lies along the U.S. 93 bypass route, just northwest of Ashley Square and extending south from Two Mile Drive. The land is needed for the bypass right of way.

The meeting starts at 7 p.m. Tuesday in City Hall council chambers. The meeting is a day later than normal because of the President’s Day holiday.