Board of Appeals tables request for medical marijuana variance

ELLSWORTH — Members of the Board of Appeals on Monday voted unanimously to table an application by a couple looking to grow and sell medical marijuana at the former Branch Pond Computers shop on the Bangor Road.

The board plans to consider the issue again in December, after the state finishes its rulemaking process.

Local residents Michael Johnson and Malorie Betz were looking to the city for a variance under the city’s home occupation rules for medical marijuana before they committed to buying the 1.76-acre property at 1000 Bangor Road, which is currently owned by John and Jane Phillips. But some board members felt it would be a stretch for the board to grant a variance that could meaningfully alter the city’s zoning laws.

“Are we rewriting the zoning laws by making such a leap in interpreting the ordinance that this is a home occupation when it really isn’t?” wondered board member Stephen Salsbury. “Seems like this may be a political decision the council needs to make.”

The property, valued at $249,300, has several buildings, including a retail space and a separate home that’s roughly 800 square feet.

“That’s why they’re looking at this lot because it gives them everything they need,” Code Enforcement Officer Dwight Tilton explained. “They’ve got a 7,000-square-foot building they can grow in, they’ve got a storefront to carry the products for their caregivers and medical patients and then they’ve got a home to live in.”

The city’s ordinance allows medical marijuana caregiver operations at a primary residence. The business can operate and plants can be grown in a separate building, but can take up only 25 percent of the “gross floor area of the principal dwelling structure,” which in this case would be roughly 200 square feet, since the primary residence is around 800 square feet.

State law, however, allows each caregiver (both Johnson and Betz are registered as caregivers) to have up to 30 mature plants (plus unlimited seedlings and six mature plants for their own use) or 500 square feet of “canopy,” the “total surface area within a cultivation area that is dedicated to the cultivation of mature marijuana plants.”

“Is that why you’re saying the ordinance might be a little bit not right?” Toothaker asked.

“When we did this, we did not have the final count from the state on what they would allow for square footage,” said Tilton. “It was based on the number of plants.”

Allowing operations to calculate the number of plants by canopy, said Tilton, “kind of changes things a bit.”

“If I’m to buy this property in question and to actually be able to afford to make an honest living we need to be able to have this variance granted,” said Johnson. “It’s not like we’re trying to build a dispensary or a storefront in downtown Ellsworth — it’s located in more of a rural community, on the outskirts of town. I don’t think the presence of a cannabis store there would affect the overall well-being of the town.”

The city has been waiting to rewrite its ordinance until the state finishes rulemaking, said Tilton, which is expected to happen within the next few months.

“We know the problems we have with the ordinance and we’re going to try to address them as soon as we can,” said Tilton.

The Office of Marijuana Policy, a part of the Maine Department of Administrative and Financial Services, announced earlier this month that it would issue Maine’s first active licenses for recreational establishments starting Sept. 8, with retail use allowed starting Oct. 9.

The default is prohibition, meaning municipalities must opt in to allowing recreational establishments. As of July, communities that had opted in were mostly in the southern and western areas of the state, including Auburn, Bangor, Bowdoinham, Eustis, Farmington, Hallowell, Paris, Poland, South Portland, Waterville and conditional access in Etna, Mercer and Topsham.

“I think what Dwight’s hinting at,” said Toothaker, “is that within the next two months we’re going to have a lot more rules and regulations come out because the state’s going to be issuing their final retail and then the city’s going to have to react to that.”

Maine’s medical cannabis market is one of the largest in the state, behind lobster and potatoes, according to figures from the Maine Department of Administrative and Financial Services. Mainers bought more than $111.6 million of legal medical cannabis in 2019. The state’s 2,600 registered caregivers accounted for most of that, selling at least $85.3 million of marijuana between February through December of 2019, or 76.5 percent of all Maine’s medical marijuana sales. (The state only began tracking caregiver tax revenue in February 2019, so the tally is a month short.)

The state’s eight licensed dispensaries (including one in Ellsworth), sold $26.3 million worth of products last year. The state levies a 5.5 percent sales tax on non-edible medical marijuana products and an 8 percent sales tax on edibles. Recreational products (once they’re on the market) will be subject to a 20 percent effective tax rate.

Toothaker alluded to neighbors who are worried about having the proposed Bangor Road operation nearby, although he did not read any letters on Monday.

“We’re not going to have a cornfield of pot out there?” he asked.

“No, you’re not,” Johnson replied. He said they also could install machines that would eliminate odors from the growing operation.

Square footage wasn’t the only issue board members saw with granting the variance. Board member Stephen Shea said that he didn’t believe they could grant a variance even if final state rules were in place, in part because the city’s Unified Development ordinance allows home occupations to have only six customers or clients per day between 8 a.m. and 8 p.m.

“I don’t believe we could grant a variance. The council could make it allowable, but as the law stands today I don’t think we could grant a variance,” said Shea. “That’s not a space and bulk change, that’s a change.”

Kate Cough

Kate Cough

Kate covers the city of Ellsworth, including the Ellsworth School Department and the city police beat, as well as the towns of Amherst, Aurora, Eastbrook, Great Pond, Mariaville, Osborn, Otis and Waltham. She lives in Bar Harbor and welcomes story tips and ideas. She can be reached at [email protected]

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