2017-05-19 / Front Page

South Portland drops marijuana moratorium

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — South Portland isn’t exactly throwing the doors wide open to pot shops, but as of this week, it’s not rejecting them either.

In a pair of 4-3 votes Monday, May 15, the South Portland City Council decided to not enact a new moratorium on retail marijuana establishments.

Originally adopted Dec. 19 and backdated to the first formal council debate on the topic Nov. 21 – action that followed a statewide referendum vote Nov. 8 to de-criminalize recreational use of marijuana – the ban on accepting site plan review or license applications for retail stores or social clubs, as well as cultivation, manufacturing, and testing facilities to prepare the product for market, was set to expire May 20.

The new six-month moratorium would have extended the ban until Nov. 30. Because a moratorium is, in effect, an ordinance, albeit one with a sunset clause, the city charter requires a supermajority of five council votes for passage. Mayor Patti Smith and Councilors Maxine Beecher, Linda Cohen, and Susan Henderson voted for new sixmonth moratoriums, while Councilors Brad Fox, Claude Morgan and Evan Rose opposed the idea.

Although the statewide referendum was close enough to go to a recount, passing by 4,073 votes of 759,311 ballots cast, the mood in South Portland was less obscure, with 57.6 percent of voters in favor of legalization. That was the second time residents had their say, having adopted a local measure with 52.4 percent in favor in 2014.

“This is not about not heeding the will of the voter,” Smith said, explaining her vote to extend the moratoriums.

“I’m all on board with the will of the voter,” she said. “This is about execution. We really have no idea what we should be charging (for license fees) so it’s reasonable.

“Is this going to be lowest bidder wins? Is that our goal as a city?” Smith said, intimating that with the possibility of a local option sales tax at stake, municipalities may well lower permit fees in a competition to become a mecca of the new industry.

“I personally feel like we are rushing this though without really good data,” Smith said. “I guess I am more conservative in some areas of my life. If the staff does not have tools, or has a lack of clarity, we’re all going to hear about it.”

Whether a local tax accompanies the 10 percent tax expected to go to the state, remains unknown, as the state continues to wrestle with licensing and permit rules. Because those permits and fees can’t help but drive local action, the city’s contracted attorney, Sally Daggett, of Portland firm Jensen Baird Gardner & Henry, said it only makes sense to adopt a wait-and-see stance.

“We’re still waiting for a lot of things to get resolved by the state Legislature, but at the same time there are folks who are coming forward who are wanting to know where are these things going to be allowed to be,” she said. “That really puts the staff, and the planning board, and even the appeals board, in difficult positions, because people are asking questions nobody knows the answers to, because we just don’t know what the state is going to put forward.”

Daggett said one application has been submitted to the city for a marijuana growing operation.

“Right now the applicant is waiting to see what the city is going to do, and it’s really putting everybody in a state of flux,” she said.

Rose later said the application is for legal medical marijuana. How rules for medical and retail marijuana operations will interact remains a question mark on both state and local levels. Rose said the applicant proposes to use one third of a 9,000-sqaure-foot warehouse on the far end of the Rigby Yard railroad station to grow marijuana, with the rest of the space dedicated to other agricultural crops.

“I think that would be a wonderful thing in this city because this is the future of urban agriculture,” he said.

While there is concern over odor and other aspects of a large scale marijuana growing complex, Rose said it is still, at its heart, a plant product, far safer, in his view, then some recent proposals for development at the rail yard.

“It’s not as if there’s some radioactive substance that’s coming out of this that’s going to affect you,” he said.

Even so, residents who spoke at Monday’s meeting urged caution, largely supporting extension of the moratorium.

“At the risk of saying the obvious, this is a deliberative body, I suggest you be deliberative in this case, so staff can take the time necessary to create the ground rules as the city moves into the new world,” said Orchard Street resident Bob Whyte.

“We have to be real careful with this stuff,” agreed Brigham Street resident Russ Lunt. “This is going to take off like an explosion because it’s going to be a real lucrative business. I’m sure it’s tough to figure this out.”

“I understand the need to deliberate a little bit more on this and get it right, but the public has spoken on this. The polls were pretty clear,” Mussey Street resident Greg Lewis said. “We’re always talking about how to increase the tax revenue. Well, here’s a way where you don’t have to rezone the whole city and do favors for developers in order to get a little extra tax base.”

“It’s already here, the money’s already changing hands, this is just going to allow it to be out in the open,” Lewis added. “This is just going to allow the government to collected a little extra revenue for it. That seems like a win-win situation to me.”

City Manager Scott Morelli said an extension of the moratorium was not intended as a means to thwart the will of the electorate.

“We don’t want this moratorium to put out there in any way the conveyance that the city council does not support what the voters have said. We just are asking for a little bit more time to make sure we have the right performance standards in place, to make sure it’s done responsibly,” he said.

“I’m really concerned that we have nothing in place (for performance standards),” Councilor Beecher said, as she moved to liken the possibility of pot shops to other issues that have recent raised so much dander in South Portland.

“If people are concerned about the height of buildings, well, I’ve got news for you, when this thing is right next door to you, you’ll be a whole lot more concerned then,” she said. “I certainly hope we can take the time so the police department doesn’t have to hire two extra policemen just because there’s a social club next door.”

“I think (adopting a moratorium) is the responsible thing to do,” Cohen said. “I think that even though the public passed these related activities into law, they still expect the council is going to act judiciously and not allow them to go just anywhere within the city.”

However, while in theory an applicant could submit a site plan review application, then argue in court that any zoning rules subsequently adopted by the city do not apply, Rose said that’s only a risk in South Portland’s three industrial districts.

“I will not be supporting the moratorium and I’m not sorry about it,” he said. “We already have adequate protection in zoning. All of our zones with the exception of the industrial zones are prohibitive of any activity unless it’s expressly permitted. That already is a mechanism by which the planning department can say no to these applicants.”

Rose also said the city can’t issue a license for retail marijuana operations until the state has promulgated its rules, something that’s not expected to happen until February 2018 thanks to a similar moratorium passed at the state level by the Legislature.

“We can’t really grant licenses for this particular item until the state has its act in a row,” he said.

“We are really not under the gun here,” Morgan agreed. “We are already working in the shadow of a big moratorium in Augusta, and that satisfies me. Whatever we do tonight, none of that changes. All we do is delay the opportunity for this enterprise to come to the city. It’s a big red stop sign on anyone even having the entrepreneurial potential of considering opening up shop.”

“I fear we are sending a two-faced message to staff,” Morgan said. “We are saying hurry up and get things done, but here’s another moratorium, so take all the time you want and be deliberative. I don’t mean this as a serious critique that staff is not up to snuff, but you could tell where this was going long before the vote. This has been coming around the bend. This is something the city should have been preparing for. I cannot sign on to a moratorium so that staff has something easy to say to applicants. If staff is struggling for words, we can write a script.”

Morgan also faulted work to date on new zoning standards for retail marijuana, saying the planning department seems to be overthinking the issue.

“The drafts of what I’ve seen going around are as if we are inventing the wheel. We are not introducing a strain of smallpox into this community,” he said, likening marijuana instead to the regulation of alcohol.

“I can remember when David Geary would go daily to Augusta to petition the state to allow him to make beer commercially and he heard the-sky-is-falling arguments all the time – this will be the ruin of the state. This will bring the state to its knees. It’s going to be the end of civilization as we know it. It has turned out to be quite the opposite and I see too many parallels here,” Morgan said. “In fact, I note the next order of business after this item is granting a liquor license, and I bet there will not be a lot of discussion on that.”

The city council is scheduled to hold a workshop on proposed regulations for retail marijuana outfits at its next meeting, Monday, May 22. With no moratorium in place, Smith said that session should jump to the top over everyone’s priority list.

“Hopefully everyone has their shoes shined and their homework done for the workshop, so we can move this on a fast track,” she said.

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