Council considering no setback for marijuana facilities

By: Andy Kozlowski | Madison - Park News | Published March 4, 2020


MADISON HEIGHTS — The Madison Heights City Council is currently considering a proposed ordinance change that would eliminate setback requirements for marijuana facilities.

The proposal would reduce the setback distance between marijuana facilities and homes, schools, churches and child care centers from 500 feet to 0 feet. The proposal would instead rely on a map of designated parcels — a map that could change in the future.

The council was poised to vote on the proposal on second reading Feb. 24, but instead tabled it for consideration at the next meeting March 9.

The proposal’s first reading was at the meeting Feb. 10. The council members who approved it then were Brian Hartwell, Roslyn Grafstein, Kymm Clark, Emily Rohrbach and Mark Bliss. The two dissenting votes were David Soltis and Robert Corbett.

The ordinance change is an attempt to resolve the situation at Alternative RX, at 2 Ajax Drive, the site of the former Madison Athletic Club. Due to what city staff has described as a “clerical error,” the location was included on a map of eligible parcels that met the original 500-foot setback rule, when in reality it’s about 400 feet from a home. Alternative RX will feature three marijuana operations under one roof, serving as a grow operation, processing center and provisioning center.  

“I have concerns over our duplicity with the public,” Corbett said prior to the Feb. 24 meeting. “We sold the ordinance to the public on the basis that there would be a minimum 500-foot setback from homes. Now all of the sudden we find out (Alternative RX) is not 500 feet, and we’re like, ‘Oh, I guess it doesn’t matter.’ Either we mean what we say, or we don’t.

“The voters of Michigan decided that possession and use would be decriminalized. There’s no question of that. But we can’t jump to the conclusion that the voters want uncontrolled growth of dispensaries and related businesses,” he said. “Many people are sensitive to where these types of facilities are located, and the kind of image that they project.”

‘Green zones’
The map of eligible parcels, dubbed “green zones,” is an official published document used in the application process for prospective marijuana businesses. The discrepancy in Alternative RX’s location was first discovered by resident Sean Fleming last fall when he ran for the Madison Heights City Council. He did not succeed in his election bid.

The ordinance currently reads: “No medical marihuana facility shall be located within 500 feet of, or be adjacent to or abut, a school building, church, family childcare home, group childcare home or a residential district where residential units are located.”

The proposed language change reads: “Marihuana facilities shall be located at a distance determined to adequately separate these locations from marihuana facilities.”

According to the Michigan Regulation and Taxation of Marihuana Act, the state suggests keeping marijuana businesses out of residential zones and providing a setback distance of at least 1,000 feet from schools — although it leaves final judgment to each city.

“The department shall approve a state license application and issue a state license if … the property where the proposed marihuana establishment is to be located is not within an area zoned exclusively for residential use, and is not within 1,000 feet of a pre-existing public or private school providing education in kindergarten or any of grades 1 through 12, unless a municipality adopts an ordinance that reduces this distance requirement.”

Now the council may resolve the issue by simply changing the law so that a setback distance is no longer required. In that case, only the official published map would be relied upon for the location of marijuana-related businesses.  

City Manager Melissa Marsh explained in an email Feb. 24 that the City Council could also approve new versions of the map that add or remove “green zones,” if they wish, and that any additional parcels would have no setback restrictions on them if the proposal passes. They are, however, required to be located in an area zoned as either M-1 light industrial or M-2 heavy industrial. Safety compliance facilities can also be located in an O-1 office building district.  

Madison Heights has a limited number of marijuana-related licenses that can be issued, including a maximum of two each for grow operations, processing centers and provisioning centers. Those licenses are held by Alternative RX and GS Ashley/Holistic Industries — the latter to be located at the site of the former Fairlanes Bowling Alley, 29600 Stephenson Highway.

The remaining licenses include four licenses for secure transporter businesses and four licenses for safety compliance facilities, which at press time had not been granted. The City Council can change the number of allowed licenses in the future.

‘Impossible situation’
Bliss, while absent at the meeting Feb. 24, said he supported the change on first reading because of the financial risk to Madison Heights if the city backs out of its deal with Alternative RX.

“The fact this error has taken place has put the city in an impossible situation that we have to make the best of. There’s potential litigation risk that requires us to clean it up and be measured in our response,” Bliss said. “This isn’t opening up the city or changing the rules for everyone. It’s just acknowledging the mistake and trying to move forward. I’m angry we’re in this situation, and we have to make the appropriate policy changes to ensure we don’t find ourselves in this situation again.”  

Mike Bahoura, co-owner and general counsel of Alternative RX, said in an email that his company is already heavily invested.

“Our project will cost in excess of $7 million to complete. When finished, it will completely renovate and beautify a parcel that has been vacant for seven-plus years, which is facing John R Road and is visible for tens of thousands of passersby each day. We have also pledged a significant amount of money in charitable works and givebacks to the community,” Bahoura said. “This is a win for the city and its residents, and those few who still oppose cannabis will be proven to be on the wrong side of history.”

When asked whether his company would sue the city if the deal falls through, Bahoura replied: “I’m confident that the city will make the necessary changes to the ordinance.”

When asked if his company also has plans to sell recreational marijuana, should the opportunity arise, Bahoura said, “If the city allows adult-use sales, yes, we would certainly apply for that license.”    

The night of the meeting Feb. 24, the Madison-Park News contacted Hartwell, Grafstein, Rohrbach and Clark via email, asking for their thoughts on the proposed ordinance change. Clark did not reply by press time. Hartwell offered no new comments. However, he has previously explained his logic for supporting the ordinance change.

“There’s a legal term for this situation: not ‘error’ or ‘contradiction,’ but ‘ambiguity.’ And there’s a very clear understanding by lawyers and the courts on how to handle ambiguities,” Hartwell said previously. “When you have an ambiguity, you can look into the meaning of the drafters — what was the intent, and how did those words get on the page. … A judge will not take a hatchet to a legislative body’s work. The judge will take a smoothing tool to either honor the words on paper, or to honor the underlying policy. That’s what will happen in an actual court of law if anyone were to challenge this.”

He also previously said: “The only reason there’s a number, 500 feet, was that the people who opposed marijuana put it there — it was a compromise with them. But what the majority of council did was seek to protect neighborhoods and schools from being adjacent to these properties. So the true underlying policy was to simply insulate some of our sensitive neighborhoods in the city. The number 500 is completely arbitrary — some said it should be a mile, some said it should be zero.”

Grafstein said she motioned to table the vote until the March 9 meeting, at the earliest, because she wanted residents to have time to evaluate it.

“Residents can contact myself, the city manager or any member of council with any properties about which they have questions,” Grafstein said.

Rohrbach shared her thoughts on supporting the proposed change.

“The map is a very good tool for deciding where to allow these types of businesses, rather than using an arbitrary number,” Rohrbach said. “I am committed to the people of this city above everything else. I live here; I’m raising my children here. I ask myself how would I feel in every situation before I take a vote. In this case, I would rather have a successful business 400 feet from my home than a vacant building.”

She encouraged anyone with questions to contact her at emily  

Community concerns
Patricia Shields, a resident, said that the proposed ordinance is more ambiguous than before, now that there’s no guidance on setback footage. She also said that she’s concerned about the risk of marijuana businesses being in close proximity to children.

“We can’t stop them from smoking pot, but we don’t have to contribute to the habit by having excessive amounts of marijuana available to them in the community. All it takes is some people getting this stuff more easily for it to reach the kids. They want to be part of a group, and when some of them are doing it, they pull in some more,” Shields said. “Can we stop (kids from smoking pot)? No, we can’t stop it entirely. But we don’t have to contribute to it.”

Margene Scott, a former member of the City Council, agreed.

“I look my grandchildren in the eye every day, and I don’t want them to be the innocent victim of someone who will get in the car (while under the influence) and kill them,” Scott said. “I’m also concerned about how overworked our police and fire could be because of this.”

Corey Haines, the police chief, expressed cautious optimism that a slow rollout of marijuana businesses will be manageable for law enforcement.

“I have been able to speak with the Ferndale chief, who has not seen an increase in police calls to those businesses. I am optimistic that our businesses will follow suit,” Haines said. “I would prefer that these businesses are kept to the smaller amount allowed until we have experience with the first two businesses for medical marijuana that have been approved in our city.”

Corbett emphasized the value of keeping buffers in place.

“We use distances and feet to buffer many things related to zoning: minimum distances between bars and schools, between competing forms of business in terms of heavy versus light traffic. So what happens the next time we find we’ve miscalculated, maybe with a business we don’t want — maybe an adult entertainment facility or a massage parlor? We use these measurements to keep certain businesses away from places like parks and schools where our kids might be,” Corbett said.

“I’ve got nothing against the business in itself, and I’m not averse to medical marijuana facilities coming to town — I supported the two that are coming here,” he said. “But I am concerned when we start treating our own laws and zoning requirements as somehow pliable.”

Soltis said he’s against the ordinance change and that he will vote against it when it next comes before the council. He wants to keep a buffer in place.

“We already decided on a 500-foot setback for a reason: to keep our families safe,” Soltis said. “We shouldn’t change our own laws. We should follow our own laws.”