Rolla's City Council recently passed an ordinance finalizing the city's zoning requirements for medical marijuana facilities. In the meantime, the Department of Health and Senior Services has been continuing to release rules and regulations affecting Rolla's ordinance, particularly in the area of method for defining distances.
Under Missouri Constitution Article XIV Section 7 (11) no medical marijuana facility shall be initially cited within 1,000 feet of a school, church or daycare. Local cities and local municipalities can’t ban medical marijuana facilities, but they can change the setback for dispensaries since in many instances, 1,000 feet would put whole chunks of the city out of reach for patients.
The City Council unanimously approved Ordinance No. 4488, to regulate future medical marijuana facilities in Rolla applicable by state law, which allows, per subsection 7, local municipalities to impose specific regulations on time, place and manner, as well as, hours of operation of potential medical marijuana facilities, in their ordinances, which other cities, counties and municipal governments throughout Missouri are doing.
The ordinance enacted by the council on June 3 defined distance for the 500-foot setback in a method consistent with the Rolla’s existing liquor license measurement standard, but the 100-foot liquor license spacing wasn’t clearly defined in State law nor Rolla City Code, so the city has traditionally measured the distance from building to building, Rolla City Administrator John Butz said.
On the same day, the council passed its ordinance, the DHSS enacted their emergency rule on medical marijuana facilities, which defines the method for measuring distance as along the shortest path between the demarcation points that can be lawfully traveled by foot, opening up parts of downtown Rolla for future facility locations, between the sixth and seventh block of Pine Street and West Eighth Street, that were eliminated in the ordinance the City Council had passed.
The state’s definition of measurement reduced the impact of the city’s 500-foot spacing with facilities located in large structures such as strip malls with stores arranged in a row, while increasing the impact of the city’s 500-foot spacing with standalone facilities based on property lines.
“The spacing has actually some interesting ramifications. In the downtown area it actually reduces the effectiveness, and almost everywhere else it increases the effectiveness,” Butz said; before discussing the options the council had available if they were to modify the current regulations the city enacted on medical marijuana facilities.
The first option the council discussed was to keep Ordinance No. 4488 as it’s written with the 500-foot setback. The ordinance allows medical marijuana facilities in General Retail Districts (C-2), with the issuance of a conditional use permit, in Highway Commercial Districts (C-3), with a ‘use by right,’ and in the Center City District, with use by right.
“The implications if we keep that, is we may get challenged by the state or a citizen on how we have that definition of measurement, which will put the burden on us to test that theory on our ability as a local government to regulate time, place and manner,” Rolla’s Mayor Louis Magdits said.
The council had another option in having the ability to amend the current ordinance to reflect the state’s new method of measurement. The council would have the ability to define the setback for medical marijuana facilities, and amending the current ordinance to reflect the new method of measurement would further lessen the opportunity for anyone to challenge the city on its method of measurement.
“We are then less likely to get challenged, but it has implications, as John said, it will create more opportunities downtown for dispensaries, but in other areas, particularly those with large parking lots, it will change that dynamic significantly,” Magdits said. “But you would change the method of measurement and the buffer, to sort of quash all of that out, to be consistent with what the citizens wanted and what the consensus was.”
The city lastly had the choice to simply repeal its ordinance and defer entirely to the state’s regulations, since no one could challenge the city by staying consistent with the state’s legislation.
“In the last week or so, I’ve had a number of people specifically ask me, ‘why did you do anything; why didn’t you just do nothing, and let the state’s amendment and the state’s rules carry the day,’ which is an option,” Magdits said. “But there are implications of doing that. That implication would be the 1,000-foot buffer between a church, school or daycare.”
If the city deferred entirely to the state’s regulations than the city would give up its rights per Missouri Constitution Article XIV Section 7 (11) to enforce local regulations on a medical marijuana facility’s time, place and manner, as well as hours of operation.
“The market would determine the hours of operation. Then they would be allowed in C-2, C-3 and C-C and conditionally in C-1 as well. So it would open up one of those zoning classifications. And the reason for that is, we would then have to view the dispensaries like we would view a pharmacy,” Magdits said.
He added, “In our conversations with respect to the dispensaries, infusers, and so on and so forth we reference our portion of the code dealing with a liquor license. The way we have been administering that for many years is sort of by policy, the exact wording as to how we measure that distance is not really in that particular section of the ordinance.”
After a lengthy discussion, the council decided to keep the 500-foot setback from their original ordinance for marijuana facilities, and make the method of measuring spacing consistent for liquor licenses and marijuana facilities.
“The problem is neither our definition nor the state currently under liquor license define whether we are doing it by walk, straight line or some other method,” Butz noted. “I would suggest if we do that, stay with what we passed on June 3. Then we go back to the liquor license requirement in Chapter 42 under liquor licenses, and just clarify the process for how liquor licenses are established.”
Since the council didn’t have the first reading on an amendment to the current medical marijuana facility zoning ordinance, the council had an ordinance prepared for the City Council’s July 15 meeting revising the city’s liquor license ordinance, to reflect how the city defines the 100-foot spacing.
The prepared ordinance amending Section 4-16 of Rolla City Code firmly established the manner of measurement stating “In determining compliance with the measured separation, the distance shall be determined by the nearest building corner of the liquor license applicant to the nearest building corner of any school, church or regular place of worship as measured in a straight line.”
As the DHSS will formally accept applications for medical marijuana Facilities on Aug 3, a motion was made and seconded by the City Council to suspend the rules and have a final reading, which passed.