BROOKINGS – The Brookings City Council discussed setting up rules to govern how medical marijuana could be distributed and possibly grown in the community during a study session Tuesday night.

A study session is for discussion only. The council took no votes and made no decisions.

The Brookings County Planning & Zoning Commission and the Brookings County Board of County Commissioners will also take up the issue next week. Ordinance 2021-03, a temporary ordinance regarding the issuance of local medical cannabis establishment permits and/or licenses, is on the agenda for their 8:30 a.m. Tuesday meeting in the City & County Government Center. A pdf of the ordinance is available with the agenda, on the Brookings County website.

Background

Initiated Measure 26 passed in November and allows local governments to regulate medical cannabis establishments through zoning and licensing, Assistant City Manager Jacob Meshke said. 

“Medical cannabis establishments” covers four different uses:

• Cultivation facility;

• Cannabis testing facility;

• Cannabis product manufacturing facility;

• Dispensaries.

The city has two primary ways to regulate the marijuana: licensing and zoning, Meshke said.

Local governments may require a medical cannabis establishment to obtain a local license, permit or registration to operate, and charge a reasonable fee for the same, Meshke said. 

Zoning regulations include the time, place, manner of operation, and number of medical cannabis establishments, Meshke said. He gave more details on how the number could be regulated, including setting the number of establishments at zero for cultivation, testing and product manufacturing facilities.

“In simple terms, the city could prohibit those types of uses within our boundaries,” Meshke said.

“What IM 26 doesn’t allow is a local government to set the allowable number to zero for dispensaries, so there is not the ability to prohibit dispensaries from operating within the city boundaries,” Meshke said.

There is no clear-cut answer on if local governments can set a top-end number, he added.

“That’s likely a decision that will be made in the courts,” Meshke said

Key dates to remember are July 1, when IM 26 goes into effect and Oct. 29 is when the state must have its governing rules/regulations in place, he said.

The next steps will be the staff presenting a proposed ordinance denying any local applications until the state rules and regulations are in place. That ordinance will be presented to the Planning Commission in June; there would be two readings for the council in June meetings.

Staff would then concentrate on the licensing and zoning ordinances, which would go through the local legislative process, to be adopted by the council, he said.

Legal considerations

City Attorney Steve Britzman explained the purpose of licensing, but warned it was an early draft of the proposed licensing.

“One of the objectives is to protect the public health and safety through reasonable limitations on medical cannabis dispensaries and the other establishments, as they relate to neighborhood and patient safety, security for medical cannabis dispensaries and their personnel, and other health and safety concerns,” Britzman said.

“We want to have all of the reasonable guidelines in place that we can impose locally in conjunction with the fairly comprehensive 95 sections of state law that are part of the IM 26 initiative,” Britzman said.

“There still is, I think, a substantial area of local concern. And, of course, the city has numerous regulations that apply in conjunction with state laws so that we can comprehensively address an area of concern … the localized rules and regulations for everyone’s well-being,” Britzman said.

Another aspect of licensing is to establish reasonable fees so the city can cover costs, he added.

The number of licenses in each community “is a challenging question” because they’ve never licensed this before, Britzman said.

“We’re focusing at the present time on the medical marijuana component. Recreational marijuana usage will also follow this in terms of the same types of analysis that we’ll apply to this subject area,” Britzman said.

He said he will meet with other communities in the eastern part of the state, particularly Yankton and Mitchell, to see what they are doing regarding licensing and zoning.

The city has experience with licensing, Britzman pointed out, and the city will develop and present to the council a comprehensive set of licensing guidelines to determine who would be eligible to distribute medical marijuana, the appropriate fees, and where the facilities could be located, how they would run and what security they would need. 

The state is requiring the dispensaries to obtain a certificate of registration issued by the South Dakota Department of Health, he noted. 

“We will not be able to issue a license until the state issues a certificate of registration for that particular establishment,” Britzman said, adding the certificate will probably be linked to the regulation the Department of Health will provide in the future.

“So until those rules are promulgated by the Department of Health, I don’t think we’ll see any certificate of registration coming from Department of Health,” Britzman said.

The ordinance’s rough draft has 40 sections right now, Britzman said, adding staff hopes to trim the rules back to only those that are necessary.

Zoning

A lot of communities are considering where the cannabis establishments can be located, City Manager Paul Briseno said.

Mike Struck, director of Community Development, said staff has been considering what districts would be appropriate for the four types of cannabis facilities. 

Struck asked if the council wants the cannabis establishments set away from other land uses. Would the council allow the dispensaries in certain districts, but have the cultivation, testing and manufacturing in other districts? 

“Do we want them all under one roof?” Struck asked.

Other communities have decided to keep the cannabis a certain distance from schools, churches and the like, he said. How far should they be from residential neighborhoods? Should they be treated like a pharmacy, which are allowed in every business district?

He showed the council where all the city’s zoning districts are on a map.

The cultivation side of cannabis is traditionally located in industrial districts, which are located along the interstate in Brookings, Struck said.

Councilor comments

Councilor Nick Wendell wanted to clarify that the council can consider dispensaries differently from the other three facilities.

“You certainly could,” Struck said, adding the city could view the dispensaries like a retail operation. The size of the other facilities could be limited, he said.

Wendell asked if most dispensary operators would also be inclined to grow their own product, and if they’d want to sell and cultivate in the same facility.

“That’s some of the investigation that we still have yet to do,” Briseno said. Staff has found through research that the growing operation is more intensive, especially as far as the sanitary sewer system, so the council might want to consider industrial areas.

Councilor Holly Tilton Byrne asked if the city could regulate medical usage differently from recreational usage.

There are a lot of unknowns now, Struck said. That’s why staff is starting with the medical and “the recreational will be following suit.” He noted the medical facilities would be operational first and be in a position to handle the recreational products. “You almost have to kind of approach it from the perspective that they’re gonna be one and the same in the long run.”

Most of the experts have predicted that wherever you put medical, you’ll have recreational, Briseno said.

Tilton Byrne asked if the council could set different regulations based on if someone just wanted a dispensary or if they planned to cultivate in the back and have a dispensary at the front.

“You would have the ability to regulate the separation of uses,” which the city already does through current zoning laws, Struck said. The question is whether the city wants to allow a “one-stop shop” in the community.

The city does try to limit retail opportunities in the industrial areas, mainly due to traffic considerations, he said.

Staff was bringing zoning possibilities for dispensaries in commercial areas and growing operations in industrial areas, “unless you, as council, guide us in a different direction,” Briseno said.

Tilton Byrne said she’d like to see what an acceptable location would be for a “start-to-finish” business, in case someone comes forward with that business model. She asked Struck where pharmacies are currently allowed.

“Pharmacies are virtually allowed in all of the business districts,” Struck said.

Councilor Patty Bacon asked how much square footage it takes to cultivate enough marijuana to supply a retail shop.

“There’s no guidance under IM 26 with respect to size of facilities,” Britzman said.

Bacon asked about reaching out to Colorado and other states with legal marijuana for years, so Brookings can make a smoother transition.

Britzman said they will visit with the city of Yankton, which has a consultant who worked in Colorado. They’ve been gathering information since the vote and will continue to do so, he said.

Briseno said city staff has reached out to peer college towns in Colorado and other states. 

“There is more to be learned,” Britzman said.

Councilor Leah Brink asked what the zoning is for the location of Roll N Smoke, a tobacco shop.

“That is B-4,” Struck said, showing the location by the interstate. A retail cannabis shop in the B-4 district would probably be located in a strip mall, he added, because B-4 is restrictive on square footage.

Brink said she was in favor of continuing to explore the city’s options for the retail aspect. As for the other facilities, she sees that as an agricultural type of venture and asked if the city has agricultural zoning.

“In developing areas, we do allow the continuation of ag-related production until such time as development occurs,” Struck said.

Tilton Byrne said the draft ordinance in the packet suggested the facilities be at least 1,000 feet away from a school or 250 feet from a public park.

“As we saw in an earlier presentation, we have a lot of public parks,” Tilton Byrne said. She said it would be helpful to see how much area was eliminated so they would know how much retail space was still available.

Struck said they would probably be looking at areas along the interstate because of all the parks and the golf course.

“Then we have to take into consideration, how are we gonna classify our bike trails and would those come into play. Because if that’s the case, then that eliminates quite a few locations along Main Avenue, south of Eighth Street,” he said.

Councilor Joey Collins asked Britzman to confirm that there was no law covering square footage. When Britzman said that was correct, Collins said the council should find out how much square footage is needed for a cannabis building that includes “everything,” so council members have an idea of where they could be located.

“I think it’s a relevant component to look at the size of the facility,” Britzman said because it affects zoning, among other things.

It could help the individuals who are looking into operating these facilities because it could be cost-prohibitive, Briseno said.

Summary

Briseno said the staff would bring a proposed ordinance to the Planning Commission on June 1. That ordinance will come to the city council in June.

“And that’s gonna be just the stop-gap measure to make sure we have something in place for July 1 until the state creates their legislation,” Briseno said.

Staff will continue to work on the zoning as the council discussed. He asked Struck to make sure that the GIS layering map be available to the public “so they can play with it.”

The zoning and regulations proposal would include the top number of facilities and the distance allowed between them, Briseno said.

“Look for a lot more information to come forward in June, July, August, September,” he said, adding research would continue.

Contact Jodelle Greiner at jgreiner@brookingsregister.com.