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04/19/10 City Council MinutesAlso present: City Manager Jane Howington, City Attorney Charles Harball, City Clerk Theresa White, Police Chief Roger Nasset, Detective Lieutenant Jim Brendan, Fire Chief Dan Diehl, Finance Director Amy Robertson, Parks Director Mike Baker, Housing Manager Katharine Thompson, Revolving Loan Fund Manager Wade Elder, Planning Director Tom Jentz, and Deputy City Clerk Judi Funk. Mayor Fisher called the meeting to order and led the Pledge of Allegiance. Saverud moved approval of the Agenda. The motion was seconded. There was no discussion. The motion carried unanimously upon vote with Kenyon absent. Council Minutes — Regular Meeting April 5, 2010 2. Contract Approval — Brownfield Grant Staff is recommending council approve the contract for services between the city and AMEC Geomatrix for the EPA Brownfield Assessment Grant Project. 3. Proclamation — Arbor Day — April 30, 2010 Atkinson moved approval of the Consent Agenda. The motion was seconded. There was no discussion. The motion carried unanimously upon vote with Kenyon absent. C. PUBLIC COMMENT Betty Albright, 208 Garland Street, member of the Street Tree Commission, reported that Kalispell has had a street tree ordinance for 24 years and the city has seen positive and progressive action with trees. She introduced Andrea Davidson and Dave Jones, who are also members of the Street Tree Commission, and announced there will be a commemorative tree planting on April 30 at Hedges School. Albright presented the Mayor with the 2009 Tree Growth Award. Kalispell City Council Minutes April 19, 2010 Page 1 Todd Snarr, 493 2nd Avenue EN, complimented high school students on their various band and choir concerts and asked council to think about growth in the next 50 years and move the airport out of town. t ORDINANCE MARIJUANA IST READING Ordinance 1674 limits the extent to which medical marijuana facilities will be permitted in the city. Harball gave a staff report and answered questions. Public Comment Miguel Harris, 1105 4th Avenue West, remarked he does not like the way he sees this going because it is too much like what happened in California. He said the dispensaries are trying to uphold the law and it will create criminal value if you push them out of town. George Williams, no address given, noted that 63% of voters passed the Medical Marijuana proposition in 2004 and these sanctions are setting dangerous precedents that violate voters' rights. He remarked there are 14,000 medical marijuana card carriers in Montana and they are a huge economic benefit to the state. Josh Fox, 333 College Avenue #20, commented he is a licensed caregiver and admits zoning for these facilities should be established, but the dispensaries should be zoned like pharmacies. Jean Strickrodt, 1108 7th Avenue West, stated that medical marijuana makes it possible for patients to enjoy their lives and that tourism will continue to flourish in this area regardless of where the facilities are located. Colleen Summers, no address given, said she lives in the apartment complex where Wes Collins was killed and she had to explain to her kids why someone was killed over a plant. She said this will increase and get worse and asked what will this do to our children? Robert Cates, 805 1/2 West Center Street, stated he was the victim's caregiver and his death was not about pot plants, it was about pain medicine. He asked council not to limit the ability of patients to obtain their medicine. Justin Powell, 1115 Whitefish Stage Road, commented he also knew the victim and the motivation was prescription medication, not medical marijuana. Dane Clark, PO Box 8695, Kalispell, questioned Section I of the ordinance and said bills coming up at the federal level will step on even more private property rights; we are giving into blackmail from the federal government. Kalispell City Council Minutes April 19, 2010 Page 2 Kenneth Conley, 1599 Haven Drive, remarked these are signs of paranoia and there is no indication the federal government will ask for any grant money back. Shelley Perez, 1183 Montford Drive, said that without medical marijuana she could not be a good mother. She noted that she is a caregiver as well and has a patient who has gotten off one of three steroids because of his medical marijuana use. She asked for regulation and more tolerance for patients. Robin Reece, PO Box 10362, Kalispell, noted he is a caregiver who got involved because of his wife and she was able to get off Social Security Disability Insurance because of medical marijuana. He said he understands there is a problem with regulation and he wants to work with council to fix it. Max Battle, 120 4th Street West, stated he is an attorney who represents a provider at the women's center. He said medical marijuana is a very polarizing issue and the council should be concerned with state law and not use zoning to preempt the medical marijuana law. Todd Snarr, 493 2nd Avenue EN, stated he is concerned with the youth and where they are getting marijuana and the effect drugs have on kids. He said everything needs to go back to the state. Mark Johnson, PO Box 115, Kalispell, said he is a Disabled American Vet and he moved to Kalispell because of the medical marijuana. Pam Roberts, PO Box 1036, Kalispell, noted she is both a patient and caregiver and stated youth will smoke marijuana whether it is legal or not, adding that most of the older patients don't smoke it; they make creams or ingest it. Lorraine Clark, 710 2nd Avenue East, asked what happened to the 90-day moratorium. She stated council is rushing to judgment and only paying lip service to those speaking. Lisa Johnson, PO Box 115, Kalispell, said she has 150 signatures in opposition to the ordinance and said that bars and cigarettes should be regulated the same way. Rebecca Sturdevant, 135 Rimrock Court, remarked that marijuana is not medicine and it should be regulated as strictly as alcohol is. She said there is no way to tell what the suppliers are selling and the risks are significant. Stefan Ferrie, PO Box 2841, Kalispell, asked council to consider the loth amendment and stated he would not be able to do his job without medical marijuana. Sean Herron, PO Box 3544, Kalispell, showed council a magazine article about Missoula's IND Program that proves marijuana is definitely a medicine. He said if council takes away medical marijuana they will be giving him a death sentence. Barry Vance, 41 Vanderbilt Drive, noted that because medical marijuana is legal in the state there is no need to worry about the federal funds issue. He said other states have legalized it for medical Kalispell City Council Minutes April 19, 2010 Page 3 reasons and it is ludicrous to think that the "feds" would withhold funds. Atkinson moved first reading of Ordinance 1674, an ordinance amending Kalispell City Ordinance No. 1175 as codified under Chapter 27 of the Kalispell City Code to proscribe all land uses that are in violation of federal, state or local law and declaring an effective date. The motion was seconded. Council Discussion Hafferman read a written statement opposing the ordinance, including amendments he wants to propose. (Statement is attached and by this reference is made a part of the official record.) Gabriel argued the council is not impeding anyone's rights or their ability to get marijuana and she feels the staff outlined the issues very well. She said council is following federal law and is protecting the citizens of Kalispell by addressing the zoning. Saverud agreed with Gabriel, noting there is a risk to Kalispell to have to pay back federal grants. Larson also agreed, remarking council is not limiting access to medical marijuana and patients can still use it in Kalispell, just not have a designated business. Kluesner commented that the issue is zoning, not use, and it is the council's duty to protect the residents of Kalispell. Hafferman moved to amend Section I as follows: "...No use of land shall be permitted or conditionally permitted within the City of Kalispell that is in violation of Federal and State Constitutions and the laws of the state of Montana . " There was no second. Mayor Fisher remarked this is the most difficult issue she has had to deal with in her tenure as Mayor, but she must give credence to the laws of the state and city. She noted this does not ban the use of medical marijuana, but the legislature did not regulate it enough to determine the best method of distribution and zoning is the city's only option. The motion carried upon roll call vote with Atkinson, Gabriel, Kluesner, Larson, Saverud, Zauner, and Mayor Fisher voting in favor, Hafferman voting against, and Kenyon absent. 117h%� a DFYel r1a M1011m,y Resolution 5424 authorizes the distribution of a portion of funds from the Westside Tax Increment Financing District. Howington gave a staff report and answered questions. Kalispell City Council Minutes April 19, 2010 Page 4 Kellie Danielson, Montana West Economic Development, 314 Main Street, asked that distribution be delayed so that information about the TIF could be given to businesses. She requested a communication plan to show businesses what is available. Denise Smith, Flathead Business & Industry Association, 118 Main Street, encouraged council to keep the entire amount in place, stating it does not make sense to distribute funds early with the truck route now being built. She noted the business community is also hurting in this economy and a distribution could cripple the effectiveness of those TIF funds. Sherry Stevens -Wulf, Gateway Community Center and United Way, 1203 Highway 2 West, stated they have submitted an initial plan to the city for the use of some of the funds, but they need to prove they can make the project viable. She asked the council for more time and information. Council Discussion Mayor Fisher asked that a round table discussion with the business community be scheduled, noting she would be willing to table the discussion until after that has been held. Larson moved Resolution 5424, a resolution authorizing the distribution of $1,500,000 from the City of Kalispell Westside Tax Increment Financing District Fund to the affected taxing bodies pursuant to MCA 7-15-4291. The motion was seconded. uesner moved to table Resolution 5424 until May 17. The motion was seconded. The motion to table carried unanimously upon roll call vote with Kenyon absent. E. AYOR/COUNCIL/CITY MANAGER/REPORTS (No Action) Howington noted the new energy code is being looked at by the staff and building groups. Howington reminded council that the budget and audit will be on next Monday's agenda. Mayor Fisher announced that students from Argentina spent some time visiting with her. The meeting was adjourned at 10:10 p.m. Approved May 3, 2010 Judi Funk Deputy City Clerk Kalispell City Council Minutes April 19, 2010 Page 5 COUNCIL marijuana April 19, 2010 Bob Hafferman statement I was taught in High School civic class how the system of government works. I learned how Federal and State laws are enacted and the authority they each hold. I am concerned that Kalispell NOT have an Ordinance contrary to Montana law. Therefore, I will offer an amendment to this Ordinance - to follow: Federal and State Constitutions and the laws of the State of Montana in lieu of "federal, state or local law" The Federal and State Constitutions portion is in accordance with our oaths of office and this City must follow the laws of the State of Montana. HERE'S WHY I WILL OFFER THAT AMENDMENT Amendment 10 of the US Constitution states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. A simple yet profound passage known as States Rights. Article 1, Section 8 of the US Constitution, delegated to Congress limiting powers. One of those powers was regulating commerce between States - stating: To regulate commerce with foreign nations, and among several states, and with the Indian tribes. Very simple, very precise. No interpretation needed. The Federal government defines marijuana as an illegal substance. When applied to interstate commerce, marijuana grown in Idaho cannot legally be brought into Montana. I'M FOR THAT. I have been concerned about marijuana being brought into Montana. A person I talked with, a medical marijuana patient, was glad the Federal government was involved in regulating interstate commerce to prevent illegal drugs from entering Montana containing God -only -knows what chemicals have been added for enhancement, HENCE CONGRESS was NEVER delegated the power to regulate growing, distributing or using agricultural products, such as marijuana, WITHIN each SOVEREIGN State. Hence, by the US Constitution AmendmentX, it is up to the MONTANANS to enact laws regulating the using, growing and distributing of this crop IN Montana. Article III, Section 4 of the Montana Constitution gave people the right to enact laws by initiative. In 2004 the Medical Marijuana law was enacted by an initiative. In 2009 over 50% of the 150 lawmakers voted for a law allowing the use of medical marijuana in Montana. It is the LAW in the sovereign State of Montana. (over) SO Medical marijuana is legal in Montana. Our Northwest Drug Task Force recognizes this. (Read DIL of March 14, 2010, paragraphs 2 and 3 and the second item under paragraph 3). My concern is a VERY costly lawsuit could result if we simply try to ban a product legal by Montana law and not against the US Constitution. Investments have been made. Now Council could ban medical marijuana on moral grounds. But, how would that stand up when we have a State law passed by an initiative AND the City has a zone for "sexual oriented business" in our regulations? Wouldn't it be a bit disingenuous to ban marijuana on moral grounds? Do we want to go against the wishes of the PEOPLE? I was surprised when only two people spoke at the Planning Board hearing. Heads up folks. This issue is not going away. The legislature needs to act on clarifying their portion of the law and the Council has the duty to aid law enforcement by amending the City's zoning in accordance with needs of the Northwest Drug Task Force and the health and safety needs of our neighborhoods. It is up to the State to determine the validity of the card holders before they issue the certification cards. But at this point, IF we are to assist law enforcement and try to protect our neighborhoods, it is up to the City Council to regulate the location and other restrictions for further distribution and consumption of medical marijuana WITHIN the City. INOW114033 I will offer a second amendment to (1) locate such BUSINESS as a CONDITIONAL USE in any existing zone allowing a pharmacy as a permited use except in those lots abutting US 93 and US 2, Q regulate the hours when certified patients and caregivers can be at the BUSINESS being on y from 8: 00 am to 8:00 pm daily, 0 only certified patients and caregivers may be within the building, (4) in a RESIDENCE, only the amount of marijuana and number of plants allowable by State law per patient residing therein shall be allowed at any time, (5) exceptfor a deliverX from a Flathead County established medical marijuana BUSINESS, the sale of plants or parts thereof shall not occur in any RESIDENCE, (6) consumption of medical marijuana shall only occur at a certified patient's legal residence, or at an established, State-gMroved, medical f cft and (7) the penalty for violation &jg (whatever proper???) I believe we should enact an Ordinance on first reading that will aid the Northwest Drug Task Force and provide some protection for our neighborhoods. I believe we should send the first reading to the Northwest Drug Task Force and ask for their comments before the May 5 second reading.By May 5, the Council and the public will have also had an opportunity to reflect on the Ordinance and amendments can be further offered. We need to get it as right as conceivable. Hiding our heads in the sand will cause problems.