City commission stalls on marijuana ordinance

By Grace Lovins

Birmingham city commissioners tabled discussions of a drafted marijuana ordinance at their meeting on Monday, April 24, directing the city attorney to continue working on the drafted language and potentially meet with other attorneys and subject matter experts to ensure the city is protected from potential litigation.

The commission reviewed the potential routes they could take for a marijuana ordinance during a workshop meeting on February 13. City attorney Mary Kucharek said during the workshop the city could remain opted-out of allowing marijuana business or they could create an ordinance in which they can regulate the time, manner and place, thereby avoiding a possible petition drive to put the issue on the ballot over which they would have little control.

Kucharek said the drafted ordinance allows for only two licenses, one for a medical facility and one for a recreational establishment, and essentially gives ‘bonus points’ if the licenses are collocated. Any business will need a license both from the city and state to operate. The process and standards for annual license renewal included in the draft mirrors the city’s current process for liquor license renewal.

Although Kucharek said the state hasn’t provided much guidance for municipalities, they do get some guidance on what the city is allowed to do per the result of a recent court of appeals decision regarding cannabis litigation against the city of Berkley. The court says the city could enact an ordinance as long as it isn’t unreasonably impractical, doesn’t conflict with other laws and the Michigan Regulation and Taxation of Marijuana Act, and reasonably regulates the time, place and manner.

The proposed ordinance includes a scoring system for the application review process that uses a points system. When an application is submitted, the city manager will go through all the different elements and provide a numerical score on each of the criterium and those with the highest scores can get the license. A score would be given for the site plan, security plan, business model and other required material.

Kucharek and city manager Tom Markus emphasized in the workshop that the intention with passing an ordinance is to be proactive. Several cities across the state have had citizen-enacted petitions and ended up with an approved ordinance in which the city had no say. Markus previously said that while the city is currently opted out of allowing cannabis-related businesses, it is not protected from a petition.

Michigan state statute allows for people to petition to have a cannabis ordinance placed on a ballot if it earns signatures from five percent of local voters in the last general election for governor, Kucharek explained during the workshop session.

If a citizen-initiated ordinance were to earn a majority of votes, commissioners would not be able to amend it or make determinations on the criteria for obtaining a license, and the petition does not have to be initiated by a local citizen but could be started by cannabis interests from outside the community.

State law and the city's proposed new ordinance provide that marijuana establishments and facilities can’t be located within 1,000 ft. of a school, religious institution, park or playground, or city owned recreational facility, according to Kucharek. In response to this, commissioner Clinton Baller proposed designating more parks throughout the city to eliminate any potential areas where establishments could be located. Commissioners Brad Host and Andrew Haig said they liked Baller’s suggestion and are interested in the city manager looking further into that option.

Two individuals from the public who own and operate marijuana establishments told the commission that Birmingham is considered a prime spot where many others in the industry are eager to get involved. One mentioned the ordinance’s scoring system could open the doors for hefty litigation, which is what they claimed happened in Berkley since the city didn’t have a way to break a tie using the scoring system. They also urged the commission to talk with experts in the industry, who they said mostly come from Birmingham, to make sure the ordinance is written in the best manner possible.

After hearing public comment, Baller suggested speaking to subject matter experts to see what could be changed in the ordinance. Mayor Therese Longe echoed that suggestion, saying that speaking to Keego Harbor officials, where voters approved an amendment to end the prohibition of medical marijuana facilities, and attorneys who specialize in helping cities with cannabis litigation might be beneficial.

Two members of the Birmingham Bloomfield Community Coalition, an anti-substance abuse group, who attended the meeting by Zoom, urged the city commission not to change the current opt-out position of the city when it comes to cannabis businesses.

The commission voted 7-0 to table discussions of the ordinance and directed Kucharek to seek guidance from attorneys who specialize in helping cities with cannabis litigation. Baller also asked for a better map that illustrates where these businesses could set up shop around the city.