Portland Press Herald reports:
Saco could become the first community in Maine to ban small in-home medical marijuana growers.
City officials are considering zoning ordinance amendments that would prohibit medical marijuana caregivers from cultivating marijuana in their homes and limit them to the city’s industrial business district. But a medical marijuana caregivers trade group says the proposal is overly restrictive and may conflict with state law.
Both city officials and medical marijuana advocates believe Saco is the first community to consider prohibiting caregivers from growing medical marijuana in their homes, although a slew of towns – including neighboring Biddeford – have considered zoning restrictions as more caregivers cultivate in commercial spaces.
Saco City Administrator Kevin Sutherland said the City Council enacted a moratorium on medical marijuana facilities to allow officials time to determine where in the city such businesses should be allowed. As officials reviewed zoning, they recognized “it would be important to make this new use a prohibited use under home occupations” because of public safety concerns. He said concerns include the amount of electricity used for cultivation and the difficulty some medical marijuana businesses have accessing banking because marijuana is illegal under federal law.
“A lot of these caregivers may have a lot of money on hand. I’d rather it be in a locked facility than someone’s dresser drawer,” Sutherland said. “We don’t have enough police officers to patrol every house that might be participating in this.”
The Saco City Council will hold a workshop on the proposal Monday night, and the Planning Board will host a public hearing Tuesday night.
STATE HAS ABOUT 2,800 CAREGIVERS
Across the river in Biddeford, city officials also enacted a moratorium on medical marijuana caregivers in commercial spaces and are developing zoning regulations. The city’s Planning Board will hold a public hearing Wednesday on proposed amendments that would require a conditional use permit for commercial caregiver facilities and require a setback of 250 feet from schools, playgrounds and churches. City Manager Jim Bennett said the City Council has indicated it does not support regulating individual growers in their homes.
Sanford and Waterville are among the other communities that recently have adopted zoning amendments that require caregivers in commercial spaces to be located in certain parts of the city.
There are roughly 2,800 caregivers in Maine, with about 2,500 of those growing for patients other than a family member, according to Medical Marijuana Caregivers of Maine.
The state cannot provide an exact number of patients because it does not keep a registry, but doctors have printed more than 35,000 certificates required under state regulations to certify patients. That number could include duplicates and replacement certificates and is likely higher than the actual number of patients, according to DHHS.
The state requires caregivers to grow their plants in secure enclosures away from public view and prohibits them from allowing patients into their cultivation areas. The state also prohibits caregivers from forming collectives where they grow plants together.
Catherine Lewis, board president of Medical Marijuana Caregivers of Maine, said most caregivers are small “mom and pop” businesses that consist of a garden at home. Caregivers typically meet with patients at the patient’s home, she said.
Lewis said she understands why municipalities want to set up zoning for caregivers operating in commercial facilities, but questions whether Saco’s proposal goes too far.
“It seems like an overreaction or knee-jerk reaction to fear of the unknown,” Lewis said. “(Caregivers) have a garden within their home or outside. Basically, Saco is saying they can’t grow tomatoes in their backyard.”
A provision of the state medical marijuana law says municipalities are not prohibited from limiting the number and location of registered dispensaries, but that “a local government may not adopt an ordinance that is duplicative of or more restrictive than the provisions of this act.” That language was added to the law in 2011 to protect the privilege of caregivers and patients to cultivate at home, said Paul McCarrier, a longtime caregiver and medical marijuana industry consultant. He does not believe Saco’s prohibition on caregivers growing in their homes would stand up in court.
“Medical marijuana cultivation is complicated and I can understand the concerns of code enforcement. It’s natural that Saco would want to be out front and get citizen feedback,” McCarrier said. “This should not be used to shutter any current home-occupation caregivers who are helping sick patients, and I hope the city administration is sensitive to that.”
Lewis said representatives from the trade group likely will attend the Saco meetings and would like to work more closely with municipalities considering zoning changes.
She said she hopes municipalities will “not be so reactionary.”
UNABLE TO ‘ZONE OUT’ CAREGIVERS
Sutherland, the Saco city administrator, said city officials decided to pursue the moratorium and zoning amendments after the code enforcement officer was “inundated” with requests from caregivers who want to open growing facilities. The code enforcement officer needed guidance on where they could locate within the city, he said.
The city had not previously addressed the issue because of a 2012 legal opinion “that said we couldn’t do anything about it,” Sutherland said. But a more recent legal opinion says the city cannot zone caregivers out, but can regulate where they go and develop standards for the buildings in which they are housed.
Eric Conrad, spokesman for the Maine Municipal Association, said the organization hears “quite a bit” about the zoning issue from communities across the state.
“It is a common question that our member towns and cities face these days as society grapples with legalization of medical marijuana for medical purposes, and yet it is still illegal for many non-medical uses,” he said. The association makes sure that municipal officials understand the state’s laws, particularly regarding confidentiality provisions for caregivers and patients.
Enforcement of a ban on home-based growers would be difficult to enforce.
The DHHS keeps the names of caregivers private except in certain law enforcement-related situations, and there is no public listing of caregiver locations. City officials currently are aware of three caregivers in Saco – one each in a residential, business and industrial zone – but say there could be more.
DETAILS OF PROPOSED REGULATION
Sutherland said the city is aiming the ban at caregivers with multiple customers and is not trying to regulate patients who grow their own medical marijuana. “There’s no way we’d regulate that,” he said.
Caregivers already operating in Saco would be exempt from the new zoning requirements.
Under the proposal, medical marijuana caregiver facilities could not house more than three separate caregivers, must be located separately from the caregiver’s primary residence and must be locked and secured. Caregiver facilities would be located in the I-2 industrial business district, which also allows businesses such as hotels, banks, sports arenas and light industry. Sutherland said the I-2 zone was the best fit for caregivers because of the large amount of electricity used.
“What I struggle with is, while industrial (zoning) makes the most sense for the electrical capacity, they do take up space that could be used for businesses with more employees that don’t use as much electricity,” he said.
Saco’s proposal was developed with input from developers and caregivers, Sutherland said.
The City Council is expected to take an initial vote on the proposal Aug. 15, then hold a public hearing before a final vote in mid-September.