Berkley marijuana ordinances tabled for continued work

By: Mike Koury | Woodward Talk | Published October 14, 2019


BERKLEY — The Berkley City Council declined to move forward with a first reading of ordinances needed to allow marijuana businesses, deciding instead to gather more information on several topics.

The first readings of two ordinances were on the council’s agenda for its Oct. 7 meeting. The two ordinances deal with the zoning requirements and regulations for marijuana businesses, both recreational and medicinal.

Last month, the city’s Planning Commission recommended the zoning regulation changes to the council on the condition that the process involve a special land use.

City Attorney John Staran said a special land use is something Berkley could do, but he did have concerns with going that route and questioned if it was necessary. The commission felt going with a special land use would be the best course to allow themselves and the public to fully review a marijuana business applicant before it goes to the City Council.

“When you consider it in combination with the licensing ordinance, it seems like having a special land use process is somewhat redundant and duplicative,” Staran said. “It also potentially creates some additional standards by which the use may or may not be permitted. … I think we need to be very, very careful to have as clean and objective of a process as to who are going to be the successful licensees and who aren’t, which to me makes the more general and discretionary standards that come with special land use approval, makes those a little more concerning to me.”

A special land use is not something that Mayor Dan Terbrack was “overly excited (about)” about, as a special land use typically is used when there is a use that potentially could conflict with other uses in the area.

“It sends a signal that this is not a principal use or use by right,” he said. “Instead, it is something that, yes, we’re going to have the process. Yes, we’re going to have the applications. We’re going to figure out who gets the most points ... from the metric, and then what is the special land (use). I’m not sure what that vote is going to change, other than allowing folks the input. And I think we need to make sure that we have ample opportunity for our residents to be engaged, but I don’t know that special land use is the only mechanism.”

Staran said more citizen engagement could be built into the licensing ordinance they have now, and while there’s no intention to limit public involvement, the city does need to have a streamlined process that’s consistent with the authority given to it by the state Legislature and voters.

“We should either have a licensing ordinance or a special land use function,” he said. “I don’t think it’s a good idea to have both.”

Council members said that they could look at building in the public input as part of the administrative process. They also agreed to strike down the proposed restriction that businesses have to be 500 feet from city gateways and right of ways, which some Planning Commission members also opposed.

With the regulation ordinance, the city has been looking at up to three sites that could be licensed to run marijuana operations. According to Staran, that doesn’t mean only three businesses total.

“There could actually be more than three licenses,” he said. “For instance, you could have a medical marijuana licensed facility and a recreational marijuana facility. There could be two licenses required for that, but they could be located at the same (site).”

The council also is looking at making site plan approval part of the process and adding a public notice provision in the ordinance before any licensing decisions are made.

Because of the recommendations by the council and indecision on whether to go with a special land use or not, both ordinances were tabled for the time being.

“Until we have an option that otherwise satisfies council’s desire for transparency and resident input and having some additional engagement, we’re not sure yet if we’re going to go in that direction,” Terbrack said of a special land use.

Berkley previously opted out of allowing recreational marijuana businesses from applying to locate in the city while the city formed the framework for what the regulations would be. That ordinance came with a “sunset” date of Dec. 31, meaning the clause would expire then.

City Manager Matt Baumgarten explained that a second reading of the ordinance would need to be in place by the council’s Nov. 18 meeting — unless a special meeting is called — in order for it to go into effect 30 days later. The worst case scenario, he said, would be the sunset clause being pushed back a couple of weeks to continue working on the ordinances.