Planning Commission approves recommending medical marijuana zoning codes in Mitchell

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May 24—The city Planning and Zoning Commission approved a recommendation on Monday to establish zoning codes for medical marijuana establishments to operate in Mitchell when it becomes legal on July 1.

According to the new city ordinance that outlines the zoning regulations for medical marijuana establishments, licensed entities that sell and manufacture medical marijuana would be permitted to operate in highway business (HB) oriented districts, transportation, warehousing and commercial (TWC) districts and central business (CB) districts.

The newly created city ordinance comes roughly seven months after South Dakota voters approved legalizing medical marijuana in the state during the November 2020 election. The measure takes effect July 1, which legalizes the use and sale of medical marijuana throughout the entire state. However, each municipality has the authority to establish zoning codes and regulatory measures.

"There is importance in getting our regulations in place before the state laws become effective, and the zoning side of things will determine where these types of businesses can be located and operate," said City Attorney Justin Johnson. "This is the first step in the process for the zoning ordinance, and then the regulatory and licensing regulations will be going on "

While the Planning and Zoning Commission approved the zoning code in 5-1 vote, the Mitchell City Council will ultimately determine whether the ordinance is adopted. The council will hold its first hearing on the ordinance during a 5 p.m. special meeting on Tuesday at City Hall.

"In the HB and TWC district, it would allow for the establishment to operate with a permitted use, while the CB district would be a conditional use permit," Johnson said. "This applies to cannabis cultivation facilities, cannabis manufacturing facilities, testing facilities and dispensaries. With the dispensaries, there is the additional regulation of buffer zones around certain types of other lands."

The ordinance also outlines which areas of the city that licensed medical marijuana establishments are prohibited to operate. According to the ordinance, no cannabis dispensary shall operate within 300 feet of an educational institution, religious institution, childcare center (excluding family residential childcare), preschool, nursery, detention facility and mental health facility. In addition, marijuana dispensaries would not be permitted to operate within 1,000 feet of another cannabis dispensary.

That means any type of cannabis establishment is prohibited in residential districts, along with neighborhood shopping districts, public lands and institution districts, conservation districts, and urban development and planned unit development districts. All non-licensed cannabis establishments are prohibited in all zoning districts, according to the ordinance.

Commission member Kevin Genzlinger took issue with the 300 foot buffer zone for marijuana dispensaries to operate. Genzlinger suggested it should be expanded to 600 feet, pointing to it as the reason he made the lone vote to deny the recommendation of the ordinance.

Pam Bathke, a City Council candidate running for Ward 3, sided with Genzlinger's request to expand the buffer zone beyond 300 feet.

"I had looked up online South Dakota's law that says a 500 feet buffer zone for other types of locations, so I was curious if it would be a consideration to use 500 feet instead of 300 because it gives a little additional buffer and consistency," Bathke said.

Johnson said there is a legal provision that states dispensaries are "not to be prohibited to operate," noting it factored into the decision to establish the 300 foot buffer zone.

"If you would increase that buffer zone, there are certain zoning districts that you would end up zoning out. For example, the central business district, if you go more than 300 feet, it would basically eliminate the entire district from having an establishment," Johnson said.

Mitchell Mayor Bob Everson joined the discussion at that point, explaining that expanding the buffer zone beyond 300 feet would "make no sense," as it would restrict marijuana dispensaries to do business in the respective permitted zoning areas, especially the downtown central business district area.

"I think the logic here is that you will have somebody wanting to dispense downtown. If we try to go to that 500 or 600 feet, you'd eliminate most of that," Everson said, noting it would "make no sense" considering the city's been focused on ways to rejuvenate downtown Mitchell. "I know there are a lot of people opposed to this whole medical marijuana measure, but the fact is it's coming and it will be here. But we need to have something in place to address it."

Johnson noted distances of the buffer zones will be measured "from the closest point of the property lines but excluding public rights of way." However, those buffer distance requirements may be waived through the variance process, which would require approval from the respective city boards.

While Commission Chairman Jay Larson would like to see the buffer zone expanded to either 500 or 600 feet, he said he is on board with the 300 foot buffer zone due to the

"I agree with Justin (Johnson), it would be too restrictive and maybe the feds would come after about that since they have been known to do that with too restrictive zoning," Larson said, noting he is "glad" the council is the ultimate decision makers on the zoning codes for the medical marijuana rollout.

The ordinance defines the type of marijuana that can be legally sold by licensed establishments, which are defined under South Dakota codified law. The ordinance states "all parts of any plant of the genus cannabis, whether growing or not, in its natural and unaltered state, except for drying or curing and crushing or crumbling" are defined as medical marijuana that can be legally sold to those who have been issued a medical card by an authorized health professional per state law.

Under the ordinance, the marijuana definition specifically does not include "any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent on a dry weight basis." Therefore, that form of marijuana may not be sold or produced at licensed establishments in the city.

Johnson said the city's licensing regulations for medical marijuana establishments will also be outlined during Tuesday's council meeting.

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