Board wants marijuana ban in Kalispell

If the Kalispell City Council goes along with a Planning Board recommendation, medical marijuana production, processing and sales would be outlawed inside city limits.

The board on Tuesday called for the city to adhere to federal law that bans marijuana.

Only the three store-front retail marijuana outlets already in place before the council’s 90-day moratorium probably would be allowed to operate, depending on policy decisions on forcing compliance or allowing them to be grandfathered.

The board voted 4-2 following Tuesday night’s public hearing to recommend adding a statement to the city zoning ordinance binding the city by federal law: “Any use, category of use, or accessory use provided for in this ordinance which is in conflict with any other local, state or federal laws is hereby prohibited.”

Board members Troy Mendius and Bryan Schutt voted against the motion. John Hinchey, Rick Hull, Chad Graham and C.M. Clark favored it. Board member Richard Griffin was absent.

The board also voted 5-1 to recommend clarifying the zoning code on home occupations. The addition excludes “medical marijuana growing, sales or consumption, or the sale of any related goods and/or services including, but not limited to, paraphernalia.”

Although legally unnecessary, the language added a comfort level because the zoning code allows home occupations to sell what is produced on the premises.

Mendius opposed the addition.

Both he and Schutt said they felt the proposed zoning amendment violates the will of the people.

“The majority of the people of Montana found medical marijuana … is not taboo,” Mendius said. He endorsed a plan raised during the public hearing — when only two people spoke from among a dozen who stayed for the session — to regulate marijuana similarly to alcohol. He suggested limiting the number of licenses.

Schutt added that the ordinance could set up the city for lawsuits from caregivers and patients.

“If we turn our back on this issue, it’s not going to go away. It’ll go to Kila ” and other areas in the county, Schutt warned, but Kalispell still will have to deal with the negative fallout.

Regulate it strictly, he suggested, and “beat out all the bad apples … Minimize the harmful effects; they’re going to be there no matter what we do. To get rid of the bad apples you regulate the heck out of it.”

Clark argued for keeping sight of Kalispell’s family values and its tourism trade.

“Tourism is a major force in the economy,” Clark said. “If we’re known as the marijuana capital of the Northwest, that’s not going to do a lot for us.”

Opening the gates to an industry based on a federally designated Schedule 1 drug isn’t what the business community expects nor what residents want to see in their neighborhoods, Graham added.

Hull contended that the voters wanted medical marijuana to be a low-key industry with very specific uses. He would ban resale and distance the businesses from churches, schools and similar areas.

“We should keep as close to what the voters of Montana wanted and that is personal use,” Hull said. “If this is a push for legalization I think we should push back.”

Citing figures from City Planning Director Tom Jentz that 78 percent of the state’s patients say they use it for chronic pain and only 3 percent use it for cancer, glaucoma or AIDS, Hinchey said he backs legitimate use but questions possible abuse.

“It’s gone too far. I don’t think the law … turned out the way we intended,” Hinchey said. “I’ve got a real problem with the fact that we are violating federal law … I think we’re really sticking our neck in the noose” if city zoning code were to allow medical marijuana land uses.

The federal government still classifies marijuana as a Schedule 1 drug and recognizes no legal use for it.

But Attorney General Eric Holder’s announcement last November that the U.S. Justice Department would not enforce the law in states which have passed their own laws allowing the medical use of marijuana left the door wide open for entrepreneurs.

That decision had its effect in Montana.

Jentz shared the numbers of marijuana patients and caregivers as of February: Flathead County was second in the state with 275 caregivers and third in the state with 1,116 patients.

In just one month, however, more than 300 new patients and 100 new caregivers registered.

By March 7 the county had 393 caregivers, putting it first in the state, and 1,436 patients to make it second-highest behind Gallatin County.

Despite the current legal climate, future federal administrations could decide to enforce the federal law. The city could find itself at odds with requirements to follow all U.S. laws when accepting federal grants. Kalispell commonly uses federal grant money for infrastructure projects, business growth and other city activities.

It followed the October 2009 enactment of Montana’s Medical Marijuana Act, which gave limited guidance on how to enact the law that Montana voters passed in 2004.

Since then nearly every major city in Montana and many smaller cities are taking a closer look at how the law affects them.

Kalispell’s timeline on medical marijuana businesses started rolling with the council’s Feb. 16 vote for the moratorium. That same vote also sent the issue back to the Planning Board to draft a proposal.

The Planning Board’s recommendation goes to the City Council for action, possibly at its regular meeting April 5. The March 15 council meeting has been canceled.