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HomeMy WebLinkAboutPublic Hearing 9-28-2020 - LANG - Caregiver Grow Facility CITY OF LIVONIA PUBLIC HEARING Minutes of Meeting Held on Monday, September 28, 2020 _____________________________________________________________________ A Public Hearing of the Council of the City of Livonia was held virtually via ZOOM on Monday September 28, 2020. MEMBERS PRESENT: Kathleen McIntyre, President Vice President Scott Bahr Jim Jolly Brandon McCullough Laura M. Toy Cathy K. White MEMBERS ABSENT: Rob Donovic OTHERS PRESENT: Mark Taormina, Director of Economic Development Todd Zilincik, City Engineer Paul Bernier, City Attorney Sara Kasprowicz, Recording Secretary The Public Hearing was called to order at 7:35 p.m. with President Kathleen McIntyre presiding. This item is regarding Petition 2020-07-06-01 submitted by the City Planning Commission, pursuant to Council Resolution 170-20 and Section 23.01(a) of the Livonia Zoning Ordinance No. 543, as amended, proposing to amend Sections 2.10 of Article II, 4.12 of Article IV, 5.15 of Article V, and 16.02 of Article XVI, to define “caregiver grow facility” and regulate the zoning districts where medical marijuana facilities can operate. This item will move to the Regular Meeting of October 19, 2020. The Public Hearing is now open. There were 19 people in the audience. Bahr: We will start with City Attorney, Paul Bernier, would want to give us an overview, or Mark? Let’s start with Mark, go ahead Mark. Taormina: Maybe I could provide, I know Paul has some advice as part of this item, but why don’t I provide the background on this? Bahr: Sure. Taormina: This is a request to amend the referenced Articles of the Zoning Ordinance, and these amendments will establish regulations for medical marijuana caregiver grow operations. Currently, there are no local rules that regulate or govern where these facilities can operate. In Livonia, like most communities, 2 rely solely on State law and more specifically, the Michigan Medical Marijuana Act or the MMMA of 2008. As a result, primary caregivers have been allowed to establish grow operations inside homes within the City’s single-family residential zoning districts. Under the authority of MMMA, depending on the number of patients being used for, or being cared for by a registered primary caregiver, the legal grow limit can be as high as 72 plants. This includes 12 plants per patient, with up to 5 patients per caregiver, plus the caregiver is allowed an additional 12 plants for him or herself. In a recent ruling however, the Supreme Court, Michigan Supreme Court, that is, confirmed that municipalities do have the authority to regulate caregiver and patient plant cultivation under the MMMA. The Courts decision now means that Livonia can establish zoning regulations on medical marijuana cultivation by licensed caregivers and patients, provided that these rules do not prohibit or penalize the cultivation of medical marijuana or impose regulations that are reasonable or in contradiction to MMMA standards. I’ll let Paul tell you what’s considered reasonable or unreasonable, but we do consider these rules to be very reasonable. So, what the language amendments do, are number 1, provide a definition for a caregiver grow facility and that falls under section 2.10, secondly, they prohibit caregiver grow facilities in all R-1 through R-5 zoning districts, that’s under Section 4.12, Section 5.15, can similarly prohibit caregiver grow facilities in all R-U-F zoning districts and then the last component to these amendments that are before you, is Section 16.02, would be amended to allow caregiver grow facilities as a permitted use in all M-1, Light Manufacturing districts. So, Livonia currently has multiple caregiver grow facilities located in industrial properties, zoned either M-1 or M-2 in buildings where more than one caregiver operates, each caregiver grow facility containing up to 72 plants must be in a locked unit with separate means of access, separate address, as well as separate metering. To date, and these are according to records and I’ll share a screen briefly with you, to date, according to records that are maintained by the Inspection Department, the City has approved or is in the process of reviewing, a total of 61 caregiver units, located within 23 industrial buildings throughout the community. While these permits go back to 2015, the vast majority have been established in the past year, caused mainly by the State allowing caregiver sourced cannabis to feed the supply that is needed for the adult use retailers in the medical dispensaries. However, in April, the State’s marijuana regulatory agency abruptly ended the supply chain of caregiver grown weed to the recreational market and sales to the medical market are scheduled to terminate on October st 1 which is this Thursday. Notwithstanding this, the City continues to see a rash in caregiver grow building applications, which to me, is somewhat baffling. We do not track caregiver grow operations in residential dwellings, the larger the grow operation inside a home, as you will imagine, the greater the chance of it being a nuisance and potentially dangerous, since the City is usually not called for inspections involving changes to the mechanical systems that are needed to keep these things in operation. Paul can tell you some of the horror stories we’ve had on this. The caregiver grow operations in 3 existence at the time, this, or any other zoning ordinances passed, prohibiting the use in residential districts will be grandfathered and considered a valid non-conforming use and hence, allowed to continue. The Planning Commission is recommending approval of these language amendments, but with additional conditions related to industrial caregiver grow facilities intended for reducing the potential for conflicts and nuisances. First, they’re recommended a minimum separation between caregivers and certain land uses, included schools, daycare, nurseries, parks, residential and athletic training facilities. Again, these are requested changes involving only industrial operations. Secondly, they want to limit caregiver operations in buildings where there are no uses where caregiver grow business. So, those are the two changes to the language that’s drafted by the Law Department that the Planning Commission is recommending. With that, Mr. Chairman, I can answer any questions, Paul may want to add to this presentation. Bernier: If I might, this came up, we had a rash of problems with the caregivers in the residential neighborhoods. Let me start by saying, nobody’s trying to stop the legitimate use of marijuana, the legitimate growing for medical marijuana or the recreational. Its not the intention here at all. The intention is, we have, as I remember, three different houses that are basically burned to the ground, putting neighbors at risk and putting our firefighters at risk in these institutions. There are two different kids of medical marijuana growers that we deal with. The ones that Mark was talking about in the industrial zone that are doing things the right way. They are doing things following the law, pulling the proper permits, making sure the electrical is up to code. Making sure the ventilation is up to code and making sure things are done properly. We’ve received in the Inspection Department, many plants and they list right on there, Medical Marijuana and we know what they are and nobody is trying to stop them, but we’re making sure that we don’t have a fire safety hazard, we’re making sure that its not a nuisance. Unfortunately, when Medical Marijuana Act was passed, we were told in a decision, Ter Beek versus Wyoming, by the Supreme Court, that we couldn’t do anything to zone where the medical marijuana was. As a result, we had people growing 72 plants in a R-1 zone and it’s created a nuisance for everybody involved in that. The smell is terrible and it’s just a fire hazard. Recently, we got a gift from the Supreme Court in the derider opinion, where they said, “No, you can zone where the medical marijuana grow operations are, but you can’t zone them out of existence.” So, we took a look at it and we talked to the Planning Commission, we talked to the Fire Department and the Police Department, and the thought process was that probably the safest place for our residents is in the manufacturing zones, the M-1 and M-2 zones. So, we took a look at that and we wanted to get this to Council as quickly as possible, because quite frankly, we want to get the 72 plant grow operation out of the residential neighborhoods. The plan would call for basically a ban in the residential neighborhoods, R-1 through R-8 and R- U-F would be banned from those neighborhoods and be placed in the M-1 and M-2 zoning. As Council is also aware, anything that’s not allowed in a zoning 4 district is precluded. So, in other words, the grow operations from the medical marijuana would be restricted to the M-1 and M-2 zoning. That way, we could know where they are, to take proper safety precautions on it, both from a Police and Fire safety precaution and we would eliminate the nuisance and danger to both the Fire Department, the Police Department and as importantly or more importantly to our citizens who are stuck living next door to these places. I think it’s got to be pointed out that this doesn’t stop somebody under the Recreational Marijuana Act from growing 12 plants at their house. This does not do that. So, if somebody under the adult-use recreation wants to grow 12 plants at their house, this will not affect them. They have the right to do that under then Recreational. The entire thing that this is trying to do it to get the grow of 72 plants out of the residential neighborhood. If you’ve ever been to one of these houses where they have a grow operation going with 72 plants, its shocking. We’ve had houses that I’ve been in where the entire house has been taken over as a grow operation. In most of them, the electrical is not up to it and the exhaust is not up to it. They are dumping the waste into the sewer system and we have no idea what’s going to happen in the future. So, the thought was, let’s get it out of the residents, let’s get it somewhere that we can deal with it from a safety perspective and that would be the M-1 and M-2. Bahr: Thank you, Paul, for sharing that, any questions, or comments from Council? Councilwoman Toy, you are muted so make sure you unmute. Toy: Thank you, Mr. Chair. I don’t know who this should go to, but as you look at this then, Paul, I guess I’ll ask you. As you said, this doesn’t preclude anybody that is a caregiver, the 12 plants in their home or outside, is that correct? Bernier: The caregiver grow operation of medical marijuana would be out of the residential neighborhoods. That wouldn’t stop a person under the Recreational Marijuana from having 12 plants being grown, no. It would stop the 72-plant grower. Toy: So that would be in the house or outside, correct, outside as well? Bernier: Under the Recreational Marijuana Act, you can grow it outside if you take certain precautions, I hesitate to get into legal implications on that but if you comply with the Recreational Marijuana Act, if you comply and do it legally, this will have absolutely no affect on you, if you are doing the recreational marijuana. This is designed only with one thing in mind. The medical marijuana grow operation because as Council knows, the City has opted out of those things that we can opt out of, the only thing we cannot opt out on is the medical marijuana, but now we can at least zone it into a proper zoning area. Toy: I know that other areas across the state had some of these facilities listed them as green zones, we’re not particularly asking for green zones for these grow houses in the M-1 or M-2s? 5 Bernier: No, we’re not asking for a particular zone. We just want to restrict the same one, there are conditions that as Mark was saying that the Planning Commission wanted to add to it as to distances from certain facilities, which makes a lot of sense, while most of the M-1 zoning is not close to residential, there are some that are. You couldn’t be within, I believe, is 300 feet from the grow operation to the residential neighborhood, which is a small limitation in the M-1 and there’s a few other limitations in there. The other limitation that the Planning Commission thought was important, was that it be in a single-use building. Mark and I talked about this and Mike Fisher and I talked about this at great length today, that does not mean you can only have one grow operation in a building, that means you can have a warehouse with multiple grow operation, providing they follow the law and they have the individual lots and everything else but that can be the only thing in there, in other words, somebody couldn’t move into a building that is making auto parts and take over half of the building and then make a grow operation in the other half of it. A lot of the people don’t want to deal with the smell that’s involved and the problems that are created maybe because of it. So, it would be a single-use facility. Toy: If I may, just lastly, that is only a grow facility in those places, that was not at a dispensary, any kind of cafeteria kind of thing or anything else, correct? Bernier: The City of Livonia has opted out of everything that we are allowed to opt out of, the only thing that this would provide is to change the rules as it pertains to the medical marijuana grow operation and put it into the M-1 and M-2 zoning, that is all it would do. Toy: Thank you very much and thank you, Mr. Chair. Bahr: You’re welcome, Councilman McCullough, go ahead. McCullough: Thank you, Mr. Chair. From the Chair to Paul, I think this would be good for you, so, can we do any limitations? If its an M-1, can we enact any façade limitations? I know with M-1 there is a façade and signage and that kind of stuff is probably already limited, but is there anything, you know, so you have limitations on that kind of visual in these areas. Bernier: Again, this is, Councilmember McCullough, these are grow operations, not dispensaries, as a general rule, nobody that’s in the grow business is gonna want the public to know they are in the grow business to begin with, so the chance are, they’re going to have a sign that says “Weed Are Us” is pretty slim, because its only a grow operation. The zoning, the façade and everything would be whatever is normally our zoning laws, would apply. 6 McCullough: Especially at M-1. If something does pop up, “Weeds Are Us” I’m going to come in and talk to you about that. Bahr: Ok, any other questions from the Council? Seeing none at this point, we’ll go to the audience. Audience, again, if you would like to speak, you can hit the raise hand button on ZOOM or if you’re on the phone, you can hit *9. We’ll keep our eye out for you here. When you do speak, we ask that you state your name and address for the record before speaking. So, it is open to anyone that would like to speak at this time. I’ll just repeat one more time, if anyone from the audience would like to speak, you may do so at this time. We do have one hand up from Donny Lucaj, give us a moment here, I think you are unmuted, Donny. Lucaj: Yes, Donny Lucaj, 36950 Fox Glen. I just had a question, a quick question about these proposed ordinances or rules. Are those posted currently on your website, on the City website, where would I be able to obtain a copy of those rules? Bahr: Mark or Paul, do you know if, for sure? Taormina: Yeah, so the actual language is not posted on the website, but we can certainly make that available to you or any other interested party. All you would need to do, Mr. Lucaj, is send an email to planning@ci.livonia.mi.us and request the draft language and we’ll be happy to send that out to you. Bahr: Mark, does planning@livonia.org work too for an email address or not? Taormina: I think, or is it Livonia.org or gov, I’m going to ask Casey. O’Neil: .gov Bahr: Ok, so just make it a little easier on you and you can send it to planning@livonia.gov, we’re all still getting used to that improvement. Mr. Lucaj, do you have any other questions or comments? Lucaj: That was my only question, thank you, I appreciate it. Bahr: Thank you, anyone else from the audience? I’ll give it about ten more seconds. Ok, I don’t see anyone else from the audience wishing to speak, so for this one, this also is an ordinance change, so that would be a first reading situation, correct? So, this item will be on our agenda for the Regular meeting scheduled for October 19, 2020. As we talked about at the last item, this is also one that would require a first and a second reading so the process from here would be at that meeting, if someone were to offer a first reading, then it would move forward and two weeks later, it would be on a Council agenda again, at that 7 point, it would be an opportunity for a second reading, at that point, we would take a vote. Taormina: Mr. Chairman, if I may? Bahr: Yes, Mark. Taormina: Can we get clarification, does the resolution being offered include the language recommended by the Planning Commission? I’m guessing that. We have not provided you with specific language. Bahr: Actually, now that you mention it Mark, I think, and sorry, I’m double-checking my notes here, I think the proper next step is to refer this back to the Planning Commission, correct? Not to put on the agenda for and ordinance change? It would go back to you, either with a referral to Law Department to draft the ordinance, or as you suggested, we could go straight to first reading at the next available Regular meeting, but we just want to make sure that we know, we have direction to include that language recommended by the Planning Commission. Bernier: It was the recommendation by the Law Department, quite frankly, after we sat down and talked with Mark and Mike Fisher and myself. From the Law Department perspective, we actually like the additions that the Planning Commission came up with in addition to ours, which was talking about the distances from some different buildings and making it a single-use building. Bahr: So, we still need to ask for language to be prepared or I thought that had been prepared, I thought that’s what we had in our packets to review tonight? Is the next step, Paul, to ask for language to be prepared, or is the next step to put this on for a first reading? Bernier: We can put it on for a first reading as long as we know which route the Council probably wants to go on. If Council gave us a direction, it seemed to be that they are going to accept the wording, the additional wording of the Planning Commission, then we could put it on for a first reading and if Council likes it, they can do the first reading if there was a motion for it at that time. Bahr: Ok, Council, any thoughts on that direction? Go ahead, Kathleen. McIntyre: I support that direction. Cathy White has her hand up too. Bahr: Oh, I’m sorry, go ahead, Cathy. White: Thank you. I know Paul mentioned there was some urgency on this so that we don’t get anymore in residential districts, so I’m wondering if we the recommendation is also to invoke the emergency clause and give it a second 8 reading at the same meeting. Is there that level of urgency, I guess that question would be to the City Attorney. Bernier: The problem we have, as Ms. White knows, is that we want to restrict non- conforming use. We want to restrict people from saying, “I was here before the ordinance was passed.” Obviously, when the decision came out, we rushed to get this in front of Council, of course, COVID slowed everything down, which put us to the end of September now. It would be the recommendation of the Law Department that we use the wordings in the additional conditions that the Planning Commission put in and do an emergency reading so we don’t have any emergency cause, but of course, that’s up to Council, so we don’t get anymore grow operations within the residential zone in the meantime. White: I would definitely support that because of the safety hazards we’ve had in residential districts. Bernier: The way it would work, obviously, is if we put in the wording, as I believe, if I could read the Council correctly the way it would go, we would have the wording with the additional requirements from the Planning Commission, we would submit that language as the new ordinance and we would also as that it be done on the emergency provision. So Council, not to tell Council how to do it, but we would do a first reading, there would be a vote to invoke the emergency clause, and if that passed, then we would have a second reading and it would become the ordinance upon publication. Bahr: Cathy, are you all set? White: I’m all set, thank you. Bahr: All right, President McIntyre, go ahead, you’re muted, you need to unmute. McIntyre: I’d be very supportive of that approach and I’d like to thank our colleague Councilmember White for raising that issue, thank you. Bahr: So what I’m hearing then, is that we move forward with the recommended th language and we put that on the agenda for the October 19 meeting for consideration for first reading at that time and possibly second reading for emergency clause. So, with that, I think we can bring the public hearing to a close. As there were no further questions or comments, the Public Hearing was declared closed at 8:00 p.m.