Justice Department has options to crack down, but may galvanize the push for even wider legalization
In statements that were perhaps inevitable but nonetheless surprising to the cannabis industry, White House Press Secretary Sean Spicer on February 23, 2017, provided the first official comments on how the Trump administration may address recreational marijuana.
Responding to a question from an Arkansas reporter regarding medical marijuana, Spicer indicated that the Trump administration sees “a big difference” between medical and recreational marijuana, stating that federal law needs to be followed “when it comes to recreational marijuana and other drugs of that nature.”
Spicer also indicated that enforcement decisions will primarily be a Department of Justice (“DOJ”) matter, stating that enforcement is “a question for the Department of Justice,” but that he believed there would be “greater enforcement of [federal law], because again, there’s a big difference between medical use, which Congress has, through an appropriations rider in 2014, made very clear what their intent was on how the Department of Justice would handle that issue,” which, Spicer stated, is “very different from the recreational use, which is something the Department of Justice will be further looking into.”
Although Spicer’s statements should probably not be considered as the Trump administration’s definitive policy statement on recreational marijuana use, they do raise a variety of concerns for cannabis businesses.
This article was first published on GSB’s Northwest Land Law Forum blog.
On May 3, 2016, the City of Hillsboro adopted new land use regulations in preparation for recreational marijuana uses of the product. The city’s new code allows marijuana production facilities only in the General Industrial (I-G) and Industrial Park (I-P) zones. However, such production facilities are not allowed in the city’s recently adopted Industrial Sanctuary (I-S) or the light rail industrial zones. As a practical matter, this limitation in the I-S zone may turn out to be smart planning as the city has envisioned high energy users at these locations, and marijuana production could have had adverse impacts to energy infrastructure and availability in the area.
Development of industrial marijuana facilities in the I-G zone will allow flexibility for the use that can either occupy existing buildings or new construction. The city’s vision is the new uses might help solve the blight caused by out?of?date buildings with the result that those structures will be repurposed and refurbished. Further, vacant land in the southwest industrial area and in older industrial parks elsewhere in the city will allow for construction of new buildings to serve the use. Both refurbishment and new construction for marijuana facilities will be subject to the process and standards of the Development Review process.
Similarly, the I-P zone allows industrial marijuana facilities. However, new buildings in the I-P zone are required to have concrete or cement masonry units construction only. The city’s intent is to ensure that new development is consistent with the city‘s plan for well?designed, highest quality development, and the construction of “use neutral” buildings which enhance property values on nearby properties and better enable conversion to other higher value uses in the future. While the city refers to higher value uses in the future, it is hard to imagine when 2016 Oregon market projections call for $481 million in legal marijuana sales.
Although production is not allowed in the city’s Station Community Business Park (SC-BP) and Station Community Industrial (SCI) zones, complimentary uses will be allowed. For example, wholesale facilities and testing laboratories can occupy either existing buildings or new construction. New construction will be limited to concrete or cement masonry units construction only, and subject to the process and standards of the Development Review process.
The city also adopted time, place and manner restrictions intended to prevent nuisance impacts to surrounding properties and the general. Here are a few highlights from these regulations:
- In the case of production facilities, views from the exterior of the building into the production area are prohibited.
- Security features are addressed.
- Odor mitigation for production facilities, including installation of activated carbon filters on all exhaust outlets to the building exterior; location of exhaust outlets a minimum of 10 feet from the property line and 10 feet above finished grade; and maintenance of negative air pressure within the facility; or an alternative odor control system approved by the Building Official.
- Marijuana waste must be rendered unusable before it is disposed.
- A recreational marijuana production, processing, testing laboratory or wholesale sales facility shall not be located within 100 feet of any single-family residential, multi-family residential, mixed-use, urban center or institutional zone.
- For retail sales facilities, operation may only occur between the hours of 10:00 a.m. and 8:00 p.m., Monday through Thursday; and 10:00 a.m. to 10:00 p.m., on Friday, Saturday and Sunday.
- And be sure to check the code for distances required from schools, public plazas and other specified areas.
For those of you “do-it-yourselfers,” take heed. The city decided that home occupations for recreational marijuana facilities are prohibited. And don’t expect a marijuana cart on wheels to drop off your product because mobile retail businesses are prohibited.
Ready to get started with a recreational marijuana facility in Hillsboro? We can help navigate the land use process while you get down to business.
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Foster Garvey’s Cannabis practice group comprises a premier legal counsel team who provides a full range of legal services such as regulatory compliance, marijuana licensing, business finance, contracts, labor and employment, health care, real estate, intellectual property, litigation and dispute resolution, technology and tax. Our team possesses deep and diverse industry experience and has counseled clients across virtually all industry sectors. We understand the inherent challenges that licensed marijuana and ancillary businesses in Washington state, Oregon and Alaska are burdened with in this highly regulated industry as they deal with onerous state and local regulations as well as uncertainty resulting from federal law.
We are committed to helping our clients achieve their business goals while navigating the intricacies in this rapidly changing area of law. We prize innovation and entrepreneurship, and closely monitoring industry trends.