Fenton Council Tables Medical Marijuana Issue

After a lengthy discussion on how to regulate medical marijuana, tabled the issue, which Mayor Sue Osborn said is "very involved."

Fenton is looking to address it through zoning ordinances — one for patients who can grow it at home and one for larger operations that could be allowed in the industrial park. The city might hold a special work session later, Osborn said.

A vote won't be on the council meeting agenda on Monday. "I'm not ready to vote on something as significant as this," Councilman Tim Faricy said.

People need to start discussing it and provide their input, he said.

At its June 6 work session, discussion included extending Fenton's moratorium on medical marijuana. In February, Fenton extended its six-month moratorium another six months or until it could enact an ordinance.

In 2008, Michigan voters approved the Medical Marijuana Act, and the medical marijuana industry is emerging, said city attorney Stephen Schultz. "It has been described as the worst law ever written."

That isn't due to subject matter. The law is "basically incomprehensible" in a large number of ways, Schultz said. The law creates a defense for the use and growth of medical marijuana but includes nothing dealing with its impact on communities. Issues include where it can be grown, how it can be dispensed and its use. In addition, a new class of individual, caregivers, is created, who can grow up to 72 plants in one location.

The Michigan Department of Community Health estimated it would receive applications for 5,000 permits, he said. Instead, since April 2009, it has received 137,000 applications for medical marijuana cards. It has issued 75,000 permits.If a permit isn't granted or denied in a certain number of days, the applicant can use his or her application as a permit until the state addresses the application.

Some municipalities in the Detroit area, including Birmingham, the city of Bloomfield Hills, Livonia and Redford Township, have adopted ordinances saying any use contrary to state or federal law is prohibited in their community. And medical marijuana is illegal under public health code. People can't smoke, grow or possess it, and its classification as a schedule 1 narcotic stands. Under federal law, possessing 1,000 grams of it means a possible life sentence.

"These communities decided to ban it," Schultz said, of the Detroit-area municipalities he mentioned.

Now, they are in federal court to determine a question of federal vs. state law.

A second, "hybrid" approach, which his firm recommends for Fenton, is to adopt ordinances for zoning and regulate land uses associated with the medical marijuana industry. It would provide some limits, such as where it can be located and how it affects residential, commercial and industrial areas.

The city could prosecute people for ordinance violations and building code issues, and the police and fire departments would know where licensed medical marijuana growing was taking place, Schultz said.

In Fenton, it's proposed that larger operations must be located in the industrial park. In addition, they would be separated so they aren't clustered in one area, he said. It would be isolated at least 1,000 feet from schools, churches and other areas where children hang out.

The second part of the proposal is for patients who can grow a maximum of 12 plants at home and use them. "We treat the manufacture of marijuana by a patient in a home as a home occupation," Schultz said.

A caregiver growing plants for others would not fall under this, Schultz said. If a patient grows medical marijuana at home, he or she would have to comply with building, plumbing, electrical, ventilation and humidity requirements. These requirements are to prevent black mold, and lights from spilling over into other residents' yards.

A public hearing took place at a Fenton Planning Commission meeting. "We took testimony at the public hearing, and the industry showed up," he said.

Some objected to the industrial district approach. But, one man from Ypsilanti, he believes, set up a greenhouse operation with 60 caregivers who had separate plots using the greenhouse. Thus, there is potential for a significant impact, Schultz said.

Michigan courts are "all over the map," Schultz said. In Alpena, the circuit court has ruled people can't buy and sell medical marijuana, but a patient can grow it for him- or herself. In Isabella County, the district court has decided dispensaries are legal and can have a storefront.

Osborn asked whether Fenton can keep its moratorium on medical marijuana until it gets a written legal opinion about whether the federal government would view the city as "co-conspirators" with growers (referring to a letter the U.S. Attorney sent to the governor of the state of Washington).

Medical marijuana growers and users are licensed by the state of Michigan, and Fenton is not licensing them. In his opinion, Schultz said, "We are saying we want you in this district, not that one. We aren't sanctioning the use. It's already allowed."

The issue is evolving, along with the law, he said. It could be another one to three years before there's a court ruling about what, when, where and how much.

Fenton adopted its moratorium so it could temporarily stop medical marijuana while it adopted an ordinance. If it extends the moratorium and doesn't adopt an ordinance, the risk is someone could challenge the city in court.

The Michigan Association of Municipal Attorneys plan to ask the state attorney general to seek guidance from the U.S. Attorney, in response to Michigan law.

Faricy asked about the current state of marijuana possession or smoking in Fenton. Schultz said police regularly arrest people for possessing, selling or using controlled substances. It's in police updates every Friday. The city isn't prosecuting patients who have the medical marijuana cards.

Councilman Bradley Jacob said a successful store would pay property taxes. In addition, he believes the state should place a sales tax on medical marijuana.