01. Ordinance 1674 - Zoning Text Amendment - Medical Marijuana - 2nd ReadingTel 406.758.7708
Fax 406.758.777 1
charball@kalispell.com
TOO Kalispell City Council
Jane Howington, City Manager
FROM: Charles Harball, City Attorney
DATE: April 19, 2010 First beading
May 3, 2010 second. beading
SUBJECT: Regulating Land Use of Medical Man**uana
The Kalispell City Council requested a response to specific legal questions
regarding the authority of the City of Kalispell to regulate medical marijuana uses
of private property within its ,jurisdiction. This memorandum is intended to provide
a legal opinion to those narrow issues. It is not intended to address the policy of
local government regulation over mar%juana use in general, medical, or otherwise.
Rather, it is focused on land use regulation law, which is the authority of the City to
determine to what uses private property may be put and where such uses may be
placed within. the City.
ISSUE. What is the City s authority to regulate private land use and what is the
legal rationale for this.?
As Council is aware, the City, like many municipalities in the state of Fontana and
around the nation, has enacted and enforces a zoning code. Zoning, in simplest
terms, is the regulation of the uses of privately owned land. It exists in tension
with the constitutionally protected right of the private individual to own property.
The question of the constitutional propriety of governmental regulation of private
property first came into focus in front of the United States Supreme Court in the
1926 case of Euclid v. Ambler .Realty Co. 27.E U.S. 365, 47 s. Ct. 114, 71 L.Ed. 303
and more clearly elucidated in a number of federal cases thereafter. The matter is
framed to consider whether or not the owner of private property loses value in that
property as a result of governmental regulation that restricts its uses. This is what
we mean when we refer to the "takings" analysis. The courts have consistently held
that governmental regulation that places restrictions on the uses of private
property is proper so long as such restrictions are substantially related to the
interest of maintaining the public health, safety, and general welfare within the
jurisdiction. Any showing of diminution of property value should be weighed
against the value to the community, which value is shared by the private property
owner, of the benefits to public health, safety and general welfare produced, by the
use restriction.
Land Use Regulation of Medical Marijuana Facilities
April 19, 2010 First beading
May 3, 2010 Second beading
Page W 2
The state of Montana, as set forth below, has codified the authority of
municipalities to enact zoning codes.
70-2-301. Municipal zoning authorize& For the purpose of promoting health,
safety, morals, or the general welfare of ` the community, the city or town
council or other- legislative Body of cities and incorporated towns is hereby
empowered to regulate and restrict the height, number- of stories, and size of
buildings and other structures; the percentage of lot that may be occupied;
the size o f yards, courts, and other open spaces; the density o f population;
and the location and use of Buildings, structures, and land for trade,
industry, residence, or other purposes.
.history: En. Sec.. , Ch. 136, L 1929; re -en. Sec. 5305.1, R C.M. 1935; R. C.M.
1947, 11-2701.
`his statute has been examined by the Montana supreme Court a number of tunes
and most recently in Flathead County in 1991 in McElwain v. The County of
Flathead, 248 .wont. 231;811 P.2d 1267;1001.wont. LEXIS .107;48 Mont. St. Rep.
410. In that matter, the authority of Flathead County to regulate the treatment of
sewage on private property was challenged. The Court held that the trial court was
correct in determining that the regulation was substantially related to the
legitimate state interest of protecting public health and safety and that the
landowner failed to show she had been deprived of the economically viable use of
her property.
Given the framework of this analysis, the Council should be considering and
discussing the public health, safety, and general welfare issues involved in the use
of private property within the City for the purposes of medical marijuana facilities.
Then based upon the extent to which use regulation is placed upon the property,
evaluation should be made whether or not such regulation deprives the landowner
of an economically viable use of the property.
ISSUE: What are the issues that the Council should consider regarding the land
use regulation of medical marijuana facilities?
The recent decriminalization of marijuana for medical purposes in the State of
Montana is not an "across the board" legal approval of its manufacture, sale and
use. For the most part, marijuana remains illegal. outside of the medical
marijuana exception, the manufacture of marijuana in Montana under MCA 5-0-
110 remains a serious offense. A first time offender convicted of manufacturing a
total weight of more than a pound or growing more than 30 plants shall be
imprisoned in the state prison for not less than 2 years or more than life and may be
fined not more than. $50,000. Under MCA 45-0-102, the 1'11.ere possession of Less
than 60 grams of marijuana remains a crime with penalties unposed of not less
Office of City Attorney
City of Kalispell
Land Use Regulation of Medical Marijuana Facilities
April 19, 2010 First Reading
May 3, 2010 Second Reading
Page -- 3
than $100 or more than $500 and by imprisonment in the county jail for not more
than 6 months. Subsequent convictions raise the level of the fine to $1,000 and
imprisonment up to 1 year.
It has already been discussed that the manufacture, sale and use of marijuana
remains, for all purposes, a federal crime. Marijuana is federally classified as a
Schedule I drug under the Controlled Substances Act which means for federal
purposes that the drug is classified as having a high potential for abuse, with no
currently accepted medical use in treatment in the United states, and a lack of
accepted safety for use of the substance under medical supervision. United States v.
Oakland Cannabis Club, 53,E U.S. 483 (2001), in which. the United States Supreme
Court confirmed that Congress had the authority to enact the Controlled
Substances .Act and that the Justice Department had the authority to enforce such
law remains the effective and authoritative law today.
Given the existence and regular enforcement of these laws, it would be fair to say
that our society retains the general view that marijuana use is dangerous, or at
least potentially harmful, and should be regulated.
The Kalispell Police Department as well as other law enforcement agencies
throughout the state has expressed grave concern that the general lack of adequate
structure within state regulation of medical marijuana. makes the task of enforcing
the above laws extremely difficult. Further lack of regulation, within the City, some
may argue, would compromise the public health, safety and general welfare of the
citizens of Kalispell.
As previously discussed, the City of Kalispell significantly benefits from federal
funding in the form of grants and loans. These funds are used for a myriad of City
services, including law enforcement, fire protection and transportation safety.
Certain conditions are always placed upon these funds and compliance with federal
law is always within the covenants the City agrees upon when it receives federal
funding. Although the creation of zoning districts that permit or conditionally
permit a use of private property that is in violation of federal law has not been
explicitly detailed within. the City's contractual relationship with the federal
government, such action would fall generally within the scope of the City's covenant
to abide by federal law. Council should therefore consider whether or not risking
the loss of federal funding in any way compromises the public health, safety and
general welfare of the citizens of Kalispell.
Office of City Attorney
City of Kalispell
Land Use Regulation of Medical Marijuana Facilities
April 19, 2010 First Reading
May 3, 2010 Second Reading
Page - 4
ISS Is the City of Kalispell legally required to permit or conditionally
permit the use of medical marijuana facilities within the jurisdiction of the city?
Under any land use regulatory plan that is compliant with the equal protection
clause of the constitution, all uses that are not in violation of the later must be
allowed, either permitted or conditionally permitted, somewhere within the City.
For instance, an adult book store may not be deemed an appropriate use of property
next to an elementary school, but such use is not illegal and therefore it must have
some zone in which it is permitted or conditionally permitted. A brothel, on the
other hand, is a use of the property for an illegal activity for which the City has no
obligation to permit. Regardless of any individual opinion or libertarian philosophy
about whether or not prostitution should be considered a crime, the fact that such
activity is legally forbidden is a sufficient reason for the City to deny the permitted
use within the City on the basis that such illegal activity compromises the health,
safety and general welfare of its citizens.
In this instance, the state of Montana decriminalized the manufacture and sale of
marijuana for medical marijuana purposes although such activity remains illegal
under federal law. Can an activity be both legal and illegal at the same time? No.
The federal law either preempts the state law or it doesn't. That particular conflict
of laws question was not taken up by the Oakland Cannabis Club and has not yet
been addressed by the federal courts. At this point, therefore, the legality of the
manufacture and sale of marijuana for medical purposes remains conjecture.
With this uncertainty in mind., the Council should consider whether the best course
of action is to treat medical marijuana facilities as unlawful, and not provide any
permitted uses within the City for such activity, thereby protecting its federal
funding or to make such activity a permitted or conditional use until the law is
sorted out, thereby providing perhaps a substantial property right to those parties
who invest in the business in the interim. The downside for the City in not
permitting the use is that someone may challenge that choice and the courts may
overturn the City's decision and require the City to permit the use. However, the
downside for the City in now designating such use as permitted is the loss of federal
funding or, if the City chooses, the liability of purchasing the value of the businesses
required to close in exchange for regaining eligibility for federal funding.
Office of City Attorney
City of Kalispell
Land Use Regulation of Medical Marijuana Facilities
April 19, 2010 First Reading
May 3, 2010 Second Reading
Page -- 5
IS LE: To what extent do individuals already invested in medical marijuana
facilities in Kalispell have vested property rights?
Council may be more familiar with a similar issue. The City regulates signage and
has, in the past, grappled with the issue of the property uses of billboards. When
the City determined that it would be beneficial to relieve the area. of Main and
Idaho of the many billboards that were cluttering that intersection, it found that it
could not simply amend the zoning code and expect the billboards to disappear. The
issue of value had to be addressed. Individuals had invested funds into the
placement and lease of those billboards relying upon their property rights that
existed under City regulation. mien the City changed its regulation, a "takings"
occurred and it had to either pay the property owners for their loss in value or allow
them to locate elsewhere in the City.
Likewise, if the City now makes a new regulation that can be deemed. to "take"
value from an individual who has already invested in a medical marijuana facility
in reliance upon the City's pre-existing land use regulations, the City may either
negotiate a buyout or consider such use "grandfathered" as a nonconforming use
and allow it to continue.
The Council should consider that for federal funding purposes, it may be a very
important distinction whether such federally prohibited uses came into existence
prior to City regulation or after such use was legislatively authorized and approved
by the City.
ISS o would restricting medical marijuana Facilities from land use within the
City Of Kalispell be a bars of ' ed ical marijuana by the City.?
The media, by its headlines at least, has indicated that the City of Kalispell is
considering a ban on medical marijuana in the City. This is a misinterpretation of
the communications that the Council and staff have had. The matter before the
Council is strictly one of land use regulation and whether or not, and to what
extent, private land use for medical marijuana purposes is regulated by the City. In
no event will any action taken by the Council on this land use issue create any
municipal prohibition to the consumption of medical marijuana within the
jurisdiction of the City of Kalispell. The Kalispell Police Department will continue
to enforce the state law, as it is currently written.
Office of City Attorney
City of Kalispell
Land Use Regulation of Medical Marijuana Facilities
April 19, 2010 First Reading
May 3, 2010 Second Reading
Page - 6
The cultivation and manufacture of marijuana by a state approved patient within
his or her own home for his or her own medication and within the parameters of
state law would not be considered a land use for medical marijuana purposes. Such
a land use treatment is no different from the treatment given to the home vegetable
garden which is considered merely an auxiliary use of a residence. It is only when
the land use is expanded to that of a caregiver who is in the business of growing and
manufacturing marijuana for others that such use can no longer be considered
auxiliary and the land will be considered put to a use other than its primary use.
Further it is not the mere transaction between the state approved caregiver and the
state approved patient that gives rise to a land use. The fact that the caregiver
comes to the patient's borne to deliver his medication does not alter the home's
residential use. However, if the caregiver has the patients come to his or her home
to purchase and pick up their medication, that home tales on the character of use
that is other than residential. The differentiation between the two settings becomes
objectively apparent when viewed from the aspect of the neighborhood.
RECOMMENDATION: The Kalispell Planning Board recommended and the
Kalispell planning and legal staffs agree that the City Council should adopt and
pass an amendment to the Kalispell Zoning Code that provides that "No use of land
shall be permitted or conditionally permitted within the City of Kalispell that is in
violation of federal, state or local later." This recommendation is based upon the
discussion set forth. above. The City staff then will enforce that zoning text
amendment as it relates to medical marijuana facilities upon the presumption that
federal law does, in fact, preempt state law. Unless the Council wishes to explore
paging the value of existing medical marij uana facilities, such existing uses, in so
far as they are in compliance with pre-existing regulation, will be considered as
gran.dfathered nonconforming uses.
In the event that it is the Council's desire to permit or conditionally permit the land
use of medical marijuana facilities within the City, staff is prepared to discuss the
anticipated neighborhood impacts and the most appropriate zones within which to
permit such. use.
Respectfully submitted,
s' r
Charle§,,#diba� City attorney
Office of City Attorney
City of Kalispell
UNDERAN ORDINANCE AMENDING KALISPELL CITY ORDINANCE NO. 1175 AS
CODIFIED '' 27 OF THE KALISPELL CITY CODERO
ALL LAND USES THAT ARE IN VIOLATION OF DLOCAL
LAW AND DECLARING AN EFFECTIVE DATE.
WHEREAS, pursuant to MCA 76-2-301 the City of Kalispell, as a duly formed municipality of
the State of Montana, is authorized to regulate land uses within the city for the
purpose of promoting health, safety, morals, or the general welfare of the
community; and
WHEREAS, on March 19, 1992 the City of Kalispell enacted ordinance 1175 regulating land
use within the City of Kalispell and codified such ordinance within Chapter 27 —
zoning Regulations within the Kalispell City Code; and
WHEREAS, it is the finding of the Kalispell City Council that it is in the best interests of the
city and its citizens and for the purpose of promoting health, safety, morals and
general welfare of its citizens that land uses that are in violation of federal, state
or local law should not be permitted or conditionally permitted within the city.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MON T`ANA,
AS FOLLOWS:
SECTION I Kalispell City ordinance No. 1175, codified as Kalispell City Code
Chapter 27 shall be and is hereby amended to add Section 27-01-050
which shall provide, "No use of land shall be permitted or conditionally
permitted within the City of Kalispell that is in violation of federal, state
or local law."
SECTION II This Ordinance shall be effective thirty (30) days from and after the date
of its final passage and approval.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL THIS 3RD DAY OF MAY, 2010.
Tammi Fisher
Mayor
Attest:
Theresa white
City Clerk