Planning Commission Delves into Marijuana Provisioning in East Lansing

Monday, February 19, 2018, 7:29 am
Ann Nichols

Above: a medical marijuana dispensary in Denver, Colorado

At its February 14 meeting, the East Lansing Planning Commission did not vote on any issue related to the zoning of medical marijuana provisioning centers. They did, however, spend two hours discussing the issue, trying to determine how to balance the rights of provisioning centers as legally acceptable businesses against perceptions that they pose a threat to the safety of residents and the image of East Lansing.

East Lansing’s government grapples with new State-level marijuana laws:

After the State of Michigan issued a set of laws governing the licensure and (to some extent) the operations of five kinds of facilities related to medical marijuana, the City of East Lansing chose to break its own regulation of those facilities into two types: one set of regulations to deal with the growing, processing, transportation and testing of medical marijuana, and another solely concerned with “provisioning centers,” or what most people call “dispensaries.”

Based on recommendations from the Planning Commission, East Lansing’s City Council passed Ordinance 1395, which governs growing, processing, transportation and testing with a 4-1 vote in December 2017. But Council had more difficulty deciding on Ordinance 1416, which would have regulated the zoning of provisioning centers, particularly after East Lansing’s Downtown Development Authority (DDA) voted in December to recommend against allowing provisioning centers downtown.

Much of Council’s discussion in January focused on the possible use of overlay districts or creating physical buffers between provisioning centers and other land uses that might create conflict or “undue concentration,” including residential neighborhoods and other provisioning centers.

The City Attorney drafted an amended version to address some Councilmembers’ concerns, but rather than voting on the updated version (Ordinance 1416a), in January, City Council sent the matter back to Planning Commission with requests that they consider:

  1. a capping system based on a scoring rubric to limit the number of provisioning centers in the City;
  2. how Merced, CA, used a system of caps and scoring;
  3. a legally-mandated separation distance from residential areas;
  4. whether marijuana provisioning centers should be allowed in the B3 zoning district (in downtown East Lansing);
  5. geographical boundaries for provisioning centers in the form of overlay zones.

Overlay zones essentially add a layer of restriction on top of other zoning code restrictions.

Compassionate Advisors weighs in, creating focus on provisioning center’s signage and appearance:

During public comment at the February 14 meeting, Jerry Griffin (below) spoke on behalf of Compassionate Advisors, a group looking to site a provisioning center in East Lansing. “Once the City has decided that the facilities can come into East Lansing,” he said, “we would hope that you would see them as legitimate businesses, albeit with some additional buffers.”

He added that “anyone coming into the business will be investing a significant amount of their own money, and it would be really foolish for them to thumb their noses at what the community wants, because if you lose your license you’ll never get that money back. Tell us what we need to do to be welcomed, and we’ll do those things, but we would like to be welcomed.”

Planning Commissioner Chris Wolf queried Griffin on the issue of signage restrictions, saying, “You’ve seen signs on existing dispensaries, you get why people don’t like them…why should we expect better now?”

Griffin responded, “With all due respect to City Attorney’s opinion, every community we’ve visited is putting signage restrictions in their regulatory ordinances.” He added that “it’s not even going to be obvious what it is, although of course, eventually everyone will know what they are.”

The Commission ultimately discussed at some length whether the impact of provisioning centers could be minimized by prohibiting advertising in the form of signage. David Haywood, staff in the East Lansing Planning Department, stated that the City was constitutionally barred from controlling content on signage, but Commissioner Wolf read current State law as prohibiting advertising for provisioning centers, “even a leaf on a sign.”

Haywood said he’d discussed that prohibition against advertising on signage with the City Attorney, who thought the rule wouldn’t pass legal challenge, because signage “is a content issue, not a land use issue, even for the State.” He cited a Supreme Court decision on the issue that “if you have to read the sign to apply your code, it’s a content based regulation and it’s written wrong” because it’s an unconstitutional regulation of free speech.

Below: An existing provisioning center in Lansing; this type of signage may become rare as new State regulations take effect.

Wolf also expressed surprise that current State laws require a minimum capitalization of $300,000 to apply to open a provisioning center, and asked how that might limit the market.

In response to that comment, Jerry Griffin, representing Compassionate Advisors, said, “I know I couldn’t open one,” and that “it probably is a deterrent” that “raises a barrier to entry to show you can meet security and other State regulations.” He also thought that it might be an attempt on the part of the State to “flush out” existing dispensaries that had been operating outside the law, because they would not be able to prove that they had the necessary capital without also revealing how they got the money.

Setting a cap on provisioning centers in East Lansing?

On the issue of capping the number of dispensaries allowed in the City, Commissioner Wolf observed, “There’s limiting and scoring systems, and there’s looking at Merced’s cap and scoring. I can’t really support either idea. Capping permanently raises the issue of ‘what is the right number.’ Scoring systems…seem just as arbitrary as a hard cap.”

Wolf proposed an initial cap with a sunset date; when the date arrived, the cap could disappear or be extended. Specifically, he suggested “a sunset period of 2-4 years and a cap of two provisioning centers in the B3 district out of respect to the DDA, and a cap of six in the rest of the City.” He added, “All we have to decide is how many can we process, observe and deal with while provisioning centers are a new kind of business.”

Planning Commissioner John Cahill expressed opposition to any caps, citing the likelihood of litigation and issues of property rights.

Commissioner Leo Sell was “opposed to a hard cap,” but liked Wolf’s idea of initial caps with a sunset provision. “I remain unconvinced that this won’t simply all be taken care of by the marketplace,” he said. “We’re making it complex when it’s not complex.”

Above: Planning Commission Chair Dan Bollman and Planning staff David Haywood

Commissioner Andrew Quinn favored caps with a sunset provision generally liked the idea of a cap, and Planning Commission Chair Dan Bollman said he found the idea of a sunset approach “intriguing.” Bollman added that, “to move this forward, Council will likely need some sort of cap in order because there’s a lot of information, good and bad, and they’ll need a direction.” He suggested a cap of five to ten.

Planning Commission Vice Chair Kathy Boyle said she thought a temporary cap is preferable because it encourages the City “to focus and analyze” during the temporary cap.

Opinions on the use of a scoring system like that used by the City of Merced, CA, were mixed. Bollman thought they would be useful, but Wolf suggested a “first come first serve” or a lottery system rather than scoring applicants. 

Debate on the question of provisioning centers being located downtown:

In discussing the question of whether provisioning centers should be allowed downtown, Commissioner Wolf noted that it was already the case that such a business would have to obtain a Special Use Permit (SUP) from City Council, and that one of the existing requirements for getting an SUP was proving “no adverse impact on surrounding uses.” That would allow City Council a great deal of latitude about where to allow provisioning centers.

Commissioner Boyle said that siting provisioning centers downtown was “ultimately an issue that City Council has to address,” but expressed concern that if DDA objected, that might signify that allowing them downtown was not good for other business areas, either.

Commissioner Quinn asked whether, besides the DDA’s objections, City Council gave any reasons that provisioning centers should not be allowed downtown. Planning staff Haywood told the Planning Commission that at the meeting where the DDA voted on the matter, “There was considerable discussion with people on both sides, but they preferred to keep it out, but ultimately wanted more time to discuss the issue.”

Expressing “my own feeling,” Commission Cahill noted that the City has been trying to get more seniors to live downtown, and that “they are the people most likely to need medical marijuana, and I don’t see why they shouldn’t be able to access it where they live.” He added that he is personally in favor of allowing provisioning centers in the B3 zone.

Wolf agreed with Cahill that “this is a legitimate business, there will be demand among our residents, and it should be allowed in the areas where our citizens are accustomed to shopping.” Sell also agreed, saying “it’s already limited to almost nothing but should be allowed in B3.”

Geographical buffers may further limit locations:

One of the major difficulties in figuring out where provisioning centers might be permitted is the requirement of a 1,000-foot buffer between a center and any school or daycare. This is based on federal and state law, and has been incorporated into East Lansing’s own Code. Because East Lansing is a relatively small city with a relatively large number of schools and daycare centers, there are very few locations that are both zoned for commercial use and more than 1,000-feet away from either a school or a daycare.

This issue came up more than once during the February 14 meeting, with Bollman pointing out at one point that there was currently no active daycare in the former Bailey Community Center, but that one was planned for that location (red arrow, below), which would be well within 1,000 feet of the downtown retail area. The daycare at Peoples Church (blue arrow) also limits possible downtown locations for provisioning centers.

During his public comment, Griffin pointed out that the 1,000-foot “drug free zones” actually come from federal law designed to impose additional penalties on individuals selling drugs. He added that many cities have “gone around the 1,000-foot zones” and said that East Lansing could as well. City Council had discussed imposing a 500-foot buffer between any two provisioning centers as a way to avoid having several such businesses located near each other.

Wolf said he couldn’t support such a buffer, and that the State’s $300,000 capitalization requirement and the lack of available space “makes it unlikely that there will be a concentration anywhere in East Lansing.

Cahill weighed in to say, “This is no more dangerous than a liquor store. Are there limits on how close liquor stores can be [to each other]? If not, the 500-feet [limit] is making it harder for provisioning centers than for liquor stores.” Haywood acknowledged that no such buffers are required between liquor stores.

Below: Spartan Spirits as seen from CVS; both sell alcohol and are about 175 feet apart.

Sell also saw no need for 500-foot buffer, seeing it “as part of a move to eliminate the possibility” of medical marijuana provisioning centers. He pointed out that 500 feet is “nearly two football fields,” and asked, “Why are we having the conversation if we don’t want to have these at all?”

Quinn said he wasn’t worried about a lot of provisioning centers, but raised a concern about the possibility that related businesses, such as those selling marijuana-related paraphernalia, would tend to congregate around them.

Boyle liked the idea of trying not to have too many provisioning centers near each other. Wolf noted that the process of getting a Special Use Permit out of Council requires the Planning Department to evaluate the impact of an applicant business on its potential neighbors. Bollman agreed with Wolf, saying, “They’re going to self-limit, and ultimately the weaker will move out anyway.” The general feeling was that a limit on proximity of one center to another was not worth mandating through the Code.

Idea of an overlay district not popular with Planning Commissioners:

Although Council had discussed at some length the idea of restricting provisioning centers through overlay districts, the Planning Commissioners dismissed it fairly quickly. Sell pointed out that “the 1,000-foot buffer eliminates so much property already, this would reduce the prospects almost to nil.” He opined that the idea of an overlay district was “simply designed to be hostile to the question of allowing” provisioning centers at all.

Wolf stated that “an overlay [district] is making this overly complicated. There is no reason to treat these as “a super special case of retail that needs to be handled differently.”

The Commission plans to revisit the provisioning center question at future meetings. Ultimately they will make a recommendation, or a series of recommendations, to City Council, which will decide the matter.


Note: This article was slightly amended at 5 p.m. on the date of publication to clarify that Planning Commission did not seek to hold a vote on the matter at the February 14 meeting. (The Planning Commission's Bylaws hold that, "As a general rule, the Commission will act on an issue at the next regular meeting after the public hearing.") We also deleted a sentence that misrepresented the order of approvals at the state and local levels for provisioning centers.