2016-05-26 / Front Page

Officials mull regs for growing medicinal pot

By Ben Meiklejohn
Staff Writer

BIDDEFORD – At a joint workshop Monday, May 21, the city council and planning board discussed whether to regulate non-residential marijuana growing operations allowed under the state’s medical marijuana laws.

According to the statute, any person who has been granted permission by a doctor to use medical marijuana may designate a caregiver responsible for growing and maintaining their marijuana supply. A caregiver can provide marijuana for up to five patients, growing up to six mature plants at a time for each patient.

City Solicitor Keith Jacques said more caregivers are seeking to share space together to share costs and to grow plants outside of their homes.

“They can share some of those security expenses,” Jacques said. “As more caregivers are being together, it starts to look and smell a little more like a dispensary.”

City Manager Jim Bennett said he would like some guidance from the city council on whether production facilities of caregivers should be regulated, and if so, how.

“Do you want to attempt to regulate caregiving growing? If yes, it’s going to be an interesting legal walk we’ll be doing,” Bennett said. “If no, then these microbreweries, for lack of a better way to describe them, are going to be opening up in the community.

“If yes, what will it look like? Is it a location issue, licensing process, zoning?”

The city council recently enacted a six-month moratorium on marijuana growing facilities to study the issue. The Old Orchard Beach Town Council enacted a similar moratorium before approving an ordinance last year.

The town of York is being sued by a group of caregivers because York’s ordinance requires them to obtain a license at a public meeting to grow marijuana, which caregivers claim violates their right to anonymity. Jacques said an argument could be made to extend the moratorium until the pending litigation against York is resolved to provide guidance to the city of Biddeford on how grow facilities may be regulated.

At-large City Councilor Laura Seaver asked how the city could enforce municipal ordinances regulating activity allowed for under state law.

“If we make a determination that we have the right to do that, then we have the right to enforce it,” Bennett said. “For instance, it’s not the act of growing that we’re fighting, but it’s growing in a way that is inconsistent with our laws. For example, growing right next to a school. Do we want that?”

Ward 6 City Councilor Rick Laverriere asked how any proposed city ordinance would be affected if marijuana were to be legalized for recreational use. A referendum question on the state ballot in November will pose the question to voters.

Jacques said even if marijuana were legalized outright, the state would still have to make rules regulating who can grow it. Jacques said the law is unclear as to whether municipalities may pass ordinances regulating marijuana production facilities.

“The only thing that is clear is that we can have ordinances to take care of dispensaries,” he said.

“The law is really silent on the other items,” Bennett added.

Planning Board Member Matthew Boutet said it makes more sense for several caregivers to share the same growing facility for reasons of safety and security.

Jacques said other municipalities have been grappling with these issues and the statutes are vague on what authority municipalities have in regulating marijuana production by caregivers.

“I suspect what you’d be looking at is the municipality may have some authority to zone,” Jacques said.

“The big issue is right now we know these facilities operate in the community,” Bennett said. “Right now, it’s a loophole for ‘microbreweries’ to open up and it has some impact on neighborhoods and communities, too. Is it a concern potentially enough to you that you would instruct staff to have some regulatory authority over this, knowing there could be some legal challenges, or do you think it’s so benign that no action is needed?”

Bennett clarified, “nobody feels that we should be trying to deal with anything about individual growers. If it was just individual growers, we wouldn’t be having this discussion tonight.”

“Once you get two growers (growing in the same location) together, it changes everything,” Boutet said.

City Planner Greg Tansley said the city has zoning ordinances that regulate dispensaries and dispensary production facilities, allowing them only in Industrial Zones 1 and 2.

There are two such operations related to dispensaries and their supply sources, he said, but that doesn’t account for marijuana production by individual caregivers.

Tansley said Old Orchard Beach’s ordinance specifically exempts caregivers who grow in their own homes, and defines a growing facility as a location where a caregiver grows marijuana that is not at their primary residence.

“More and more caregivers want to grow in locations that aren’t their own home and a place in an industrial park could be a more safe place for this,” Tansley said.

When asked how an ordinance would impact law enforcement efforts, Police Chief Roger Beaupre said it wouldn’t fall under police jurisdiction.

“You’re talking civil versus criminal anyway, which is beyond the realm of what I’d be interested in,” Beaupre said. “If it’s a zone, it would be land-use regulation, which would be (Code Enforcement Officer Roby Fecteau’s) area. We can’t go in unless we have a reason to go in. Other than that, we can go in on an administrative (purpose) or inspection, but whatever you pass is enforceable by the city attorney, not the district attorney.

“If there’s an issue about marijuana and where and when to grow, I defer to the state to get my guidance. Other than land-use regulation and licensing, it just adds another layer. I don’t want to go there.”

Tansley said the state doesn’t define a growing facility, so one option would be for the city to define a growing facility as Old Orchard Beach did, and require it as a conditional use that goes through the planning board and can only be done in Industrial Zones 1 and 2, as with dispensary facilities.

Jennifer Burke, an associate member of the planning board, asked Beaupre if there had been an increase in break-ins of caregivers’ homes where marijuana was being grown.

“Data does not support that argument,” Beaupre said.

Jacques said one concern about licensing is that caregivers’ identities and the location of grow facilities would become public record, possibly violating their right to privacy.

Ward 5 City Councilor Bob Mills said he would not support continuing a moratorium beyond the six months already approved by the council.

“I think we’re chasing after something that’s not really a problem right now,” Mills said.

Ward 2 City Councilor John McCurry said he doesn’t think marijuana should be grown next to schools.

Bennett said it would be helpful to city staff to know whether the city wants to be involved in any regulatory activity regarding marijuana growing.

Seaver and Ward 1 City Councilor Michael Swanton said they would support defining what a growing facility is, but do not wish to extend the moratorium, which expires in September.

“It seems like more people are interested in us doing something than nothing,” Bennett said. “We’ll try to figure out what the something is based on these discussions.”

“I have a problem with staff writing laws instead of laws coming from people. People haven’t asked for these laws,” Swanton said.

Bennett said staff discovered potential issues, but even they are divided “all over the place.”

“We’re not trying to draft something and tell you this is what you should do. It’s just a policy issue. If four or five people don’t want anything more done, then we’re done.

“I’ve heard some issues around schools, public parks and I also heard that if this place is going to be smelling like a duck and acting like a duck, and they’re commercial facilities, then they should be treated like commercial facilities.”

Laverriere said he was concerned that if other towns pass ordinances like Old Orchard Beach’s and Biddeford doesn’t, then, “We’re going to have a hell of a lot of (growers) coming here.”

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