Zoning Practice — July 2011

Ask the Author

Here are reader questions answered by Deborah Rosenthal, AICP, and Alfred Fraijo Jr. authors of the July 2011 Zoning Practice article "The Next Zoning Battleground: Trends and Challenges in Local Regulation of Medical Marijuana."

Question from William Veno, AICP, Martha's Vineyard Commission:

Last week I had the opportunity to hear on the radio an extended discussion of the issues being faced by Colorado and Michigan on state and local regulation of medical marijuana (MM). By most measures, the experiences conveyed were not positive. From a local land use standpoint, I was most struck by hearing about the potential for the clientele of MM purveyors to have negative effects on the surroundings. I have two questions:

  1.  MM outlets seem to have a lot in common with adult entertainment land uses. Assuming a community must allow for MM, can it approach regulating it similarly to adult entertainment uses?
  2. Have any communities allowed MM as a home occupation? On what basis?  

Answer from authors Deborah Rosenthal, AICP, and Alfred Fraijo Jr.:

  1. Some municipalities have imposed land use restrictions on medical marijuana similar to those imposed on adult entertainment uses, including, for example, restrictions on the hours of operations and restrictions on proximity to districts zoned for residential or educational uses. However, medical marijuana may present broader land use and policy issues because most local governments also must address cultivation and consumption of medical marijuana in addition to the more traditional commercial land regulations and business licensing that may apply to dispensaries. Regulations on cultivation typically must address building and fire code requirements in addition to zoning regulations.
  2. Several jurisdictions have addressed medical marijuana dispensing facilities as a home occupation mostly to limit such operations to personal cultivation. See for example, regulations for Home Occupations in the Code of the City of Grand Rapids, Michigan (Section 5.9.13, Article 9, Title V, Chapter 61).

Question from Sarah J. Fox, AICP, City of Camas, Washington:

The State of Washington just passed a law (in brief) to authorize patients to grow their own medical marijuana, to designate a provider to grow on their behalf, or to form a collective garden with other patients. Last night the city council passed a moratorium to allow time to consider how to implement this new law.

A suggested path forward is whether or not this new land use could be regulated under our Unclassified Use provisions, rather than make changes to our development codes? Would this path put our city in legal jeopardy if we do not have anywhere in the city where community marijuana gardens are allowed outright? For example, we revised our codes this year concerning the regulation of sexually oriented businesses. Prior to the code update these businesses were only allowed in the Heavy Industrial (HI) zone. All land in the city that was zoned HI was owned and occupied by the city's paper mill. After the revision, these businesses are allowed in another zoning designation that is found in varies places in the city and has development potential.

In summary, my question concerns whether or not gardens that are intended to grow marijuana for medical purposes should be allowed outright somewhere in our city? If so, then our planning department will then propose some of the conditions and requirements that were discussed in your article.

Answer from authors Deborah Rosenthal, AICP, and Alfred Fraijo Jr.:

Our research indicates that the cultivation of medical marijuana is subject to greater restrictions compared to other agricultural activities based primarily on nuisance concerns and public health and safety issues. For example, many jurisdictions seek to contain public exposure to the drug, whether sensory or visual, by limiting its cultivation indoors or within certain zones as compared to personal cultivation of fruits and vegetables allowed in various zoning districts.

As discussed in the article, local jurisdictions have traditionally enjoyed broad land use powers so long as local action is reasonably related to a public purpose. Separately, local governments will benefit from clearly articulated regulations that are specific to the cultivation of medical marijuana to ensure lawful enforcement and to avoid potential challenges or rights asserted as expressly permitted by contradictory statues or zoning rules of general application.