IN-HOME OPTION FAVORED FOR REGULATING MEDICAL MARIJUANA

Corral It or Conceal It?

CHARLEVOIX -- Residents in the Charlevoix area aren't likely to see
medical marijuana storefronts cropping up in their community anytime
soon, but they could eventually have a producer living next door and
never know it.

That was the "lesser-of-the-two-evils" direction elected officials
from both the city of Charlevoix and Charlevoix Township gave to their
respective planning boards Monday at a four-board combined meeting at
city hall.

The purpose of the meeting was for officials from both municipalities
to get a direction on how they want to regulate medical marijuana
provider operations in their respective jurisdictions. Both
municipalities have instituted moratoriums on medical marijuana
operations to allow time to craft zoning ordinances to regulate them.

On Monday, city legal counsel Bryan Graham gave the boards a primer on
the legislation, approved by Michigan voters in November of 2008, that
allows for medical marijuana to be used and dispensed in the state.

First the law allows "qualifying patients and primary caregivers" to
possess (and, for patients, use) marijuana for therapeutic and
pain-relieving purposes. It allows patients to posses up to 2.5 ounces
of usable marijuana and to cultivate up to 12 marijuana plants and
allows primary caregivers to possess the same quantities for each of
up to five patients to whom they are connected through the state's
registration system.

Graham explained that any zoning ordinance that would control medical
marijuana would apply only to primary care providers and not to
individual patients. He also explained that a municipality cannot
exclude a legally permitted land use.

He said there are three options available to municipalities.

The most litigious route would be to follow the lead of a handful of
downtstate municipalities which have outlawed the operations based
upon the argument that possession and use of marijuana is still
illegal under federal law, which, they hold, trumps state law. Graham
recommended against that route citing the high cost of a legal battle
that would likely result.

Graham said the two more viable options that most municipalities have
or are considering are the concentrated or dispersed philosophy. Both,
he said, have their pros and cons.

- -- Under the concentrated approach, all medical marijuana provider
operations would be allowed only in a certain area of the city or
township -- such as a commercial or industrial district. The drawback
to this approach, Graham said, is the operation would likely be very
visible as it would be allowed to advertise itself just like any other
business. This could make the establishment and patients coming to and
from it likely targets for break-ins and robberies. Also neighboring
property owners could have concerns that their property value could
suffer. The upside to the concentrated approach, Graham said, is
everyone -- especially the police -- knows where the providers are
located and patrols can target those areas for patrols.

- -- The dispersed approach is exactly the opposite, Graham said. Under
that approach, the provider operations would be allowed only in
single-family homes. He said such an ordinance could be drafted with
language that would limit how many providers could be operate one
house, that could prohibit any sort of signs or any indication medical
marijuana's presence there; and could also require that the marijuana
be delivered to patients instead of being picked up. He said buffer
zones could also be written into the language that would establish
distances from places such as school, churches, parks, or other
provider locations. However, Graham cautioned that the restrictions
cannot be so limiting as to effectively eliminate all properties in
the township or city.

Graham said municipalities that choose to allow the suppliers to
operate in homes regulate the use through an administrative permit
process, rather than through a special use permit. That's because a
provision of the medical marijuana law makes it a felony for a
government employee to disclose personally identifiable information
about registered patients or providers a misdemeanor offense.
Therefore, a public hearing (and the accompanying notices to
neighboring property owners) that would be required for a special use
permit, would by default violate the non-disclosure portion of the
law.

When asked directly by Charlevoix Mayor Norman "Boogie" Carlson Jr.,
which option they recommend, both Graham and city planner Mike Spencer
gave the nod to the dispersed, in-home option.

Graham estimated that 80-90 percent of municipalities are going with
the in-home option, but imposing restrictions aimed at making their
presence as invisible as possible.

"The way I look at it (the law) really legalized (medical marijuana)
in a private setting," Spencer said. "I try to go back to the intent
of the state law."

Graham added: "The statute was never intended to create an
industry."

Both men agreed that the legislation is poorly constructed and vague
and fraught with pitfalls, especially for police.

"This is a police department nightmare," Graham said.

Spencer agreed noting that many police officials are concerned about
how the law could impact their drug enforcement efforts.

"They could go bust a legal grow operation," Spencer said. "If that
happens, who pays for the busted down door?"

But Graham said that's a problem for the police to work
out.

"This is a land-use issue only," he said. "We're not going to fix the
medical marijuana law."

After some discussion, the clear consensus among both township and
city officials was in favor of the in-home regulatory option and both
boards charged their respective planning commissions to begin drafting
zoning ordinance amendments in that vein.

Graham also suggested to the board members that as they set to work
hammering out details of the restrictions -- such as buffer zones
around certain properties, how many providers should be allowed per
dwelling, and so on, that the more restrictive the ordinance is, the
greater the chance that it could be challenged in court. Secondly, he
suggested considering the 2008 vote totals on the proposals in their
respective jurisdictions as a barometer for the community's support
for medical marijuana.

Charlevoix County Clerk records show that 60 percent of voters in the
township and 63 percent in the city voted in favor of the proposal --
which approximately mirrored the state-wide vote.

In the coming weeks, both the city and township planning commissions
will work on the details of their respective ordinances, which will
then come back to the council or township board of trustees for final
approval.