ADMINISTRATIVE REPORT Planning and Development Committee Agenda Item 2 TO: FROM: Planning & Development Committee B. Newell, Chief Administrative Officer DATE: November 7, 2013 RE: Siting of Federally Licenced Medical Marijuana Production Facilities For Information Only Purpose: The purpose of this report is to provide the Board with an overview of changes to the regulations that govern the operation of medical marijuana production facilities and the implications for the siting of these facilities within the Regional District s boundaries. References: Marihuana for Medical Purposes Regulations (external link) Background: On December 16, 2012, the Federal Government announced changes to the way Canadians will be able to access marijuana for medical purposes. Specifically, it is proposed to replace the Marihuana Medical Access Regulation (MMAR), which was introduced in 2002, with a new Marihuana for Medical Purposes Regulations (MMPR) that is to take effect on March 31, 2014 (when the Federal Government s current contract with Prairie Plant Systems for the production and distribution of marijuana for medical purposes expires). Under the current MMAR, Health Canada is mandated to regulate how individuals can obtain an authorization to possess and/or a license to produce marijuana for medical purposes. These licenses include: 1. Personal-use production licenses: which allow an individual to apply for personal-use production licenses authorizing them to grow their own supply of marijuana; and 2. Designated-person production licenses: which designates someone to produce marijuana on behalf of an individual. Health Canada is not required under the MMAR to notify local governments of issued license within the local government s jurisdiction. Therefore, the local government has no knowledge of the operation and is not able to inspect the operations to ensure they are in compliance with building, fire and electrical safety regulations, or to confirm that the operation is a permitted use in the Zoning Bylaw. Local governments typically become aware of medical marijuana operations after investigating a complaint from a neighboring property owner or through the local RCMP detachment as a result of a police investigation. It is understood that Health Canada initiated a review of the regulations in 2011 following concerns raised by stakeholders regarding the existing provisions of the MMAR. These concerns included the risk or abuse and exploitation by criminal elements; the complexity and length of the application process for individuals who wish to obtain an authorization to possess and/or a license to produce marijuana; Page 1 of 6
the need for more current medical information for physicians pertaining to the risks and benefits associated with the use of marijuana for medical purposes; and public health and safety risks associated with the cultivation of marijuana plants in homes, including electrical and fire hazards and the presence of excess mold and poor air quality. A key conclusion of this review has been the determination to phase-out the production of medical marijuana by individuals within residential dwellings. In its place, it is being proposed that a new supply and distribution system be introduced that would rely upon licensed commercial producers. Importantly, the Federal Government has indicated that it will respect local government zoning when determining whether to issue production licenses. As a result of these impending changes, Regional District staff have been receiving various queries regarding the zoning requirements for the growing of federally licensed medical marijuana on a commercial basis. Statutory Requirements: Federal Marijuana is subject to near absolute criminal prohibition on possession, sale and production, pursuant to the federal Controlled Drugs and Substances Act (CDSA). This is seen to limit the ability of local governments to attempt to regulate marijuana production as any zoning amendment which has as its sole purpose and effect the prohibiting or restricting of marijuana production could be characterized as an attempt to regulate drug production (rather than land use) which is an area of exclusive federal jurisdiction. Provincial Under Section 2(2) of the Agricultural Land Reserve (ALR) Use, Subdivision and Procedure Regulation, a farm use occurring within the ALR may be regulated but must not be prohibited by a local government bylaw. In June 2013, the Agricultural Land Commission (ALC) issued a bulletin stating that where a land owner is lawfully sanctioned to produce marihuana for medical purposes, the farming of said plant in the Agricultural Land Reserve (ALR) is permitted and would be interpreted by the Agricultural Land Commission as being consistent with the definition of farm use under the ALC Act (see Attachment No. 2). Regional District Land Use Bylaws: Each Electoral Area Zoning Bylaw includes a definition of agriculture and, with the exception of the Electoral Area G Zoning Bylaw, these definitions all include a reference to the growing of crops for medicinal purposes: agriculture means the use of land, buildings or structures for growing, harvesting, packing, storing and wholesaling of agricultural crops for the purposes of providing food, horticultural, medicinal [emphasis added] or farm products (Electoral Area A Zoning Bylaw No. 2451, 2008) Accordingly, Administration considers the commercial production of medical marihuana to be an agricultural use, and that this is permitted in most of the Rural Zones (see Attachment No. 1). Analysis: To date, the majority of queries regarding the possible establishment of a federally licensed medical marijuana production facility within the Regional District have involved lands within the ALR, and, for the most part, these lands have also been zoned agricultural (thereby allowing agriculture as a permitted use). It is understood, however, that the MMPR specifies that only enclosed and indoor grow operations will be licensed. In response, other local governments (i.e. District of Sechelt, Prince George, Coquitlam, Page 2 of 6
Mission and Kamloops) have explored the option of directing these facilities to industrial zones in order to mitigate concern about fire and public safety in residential zones and the difficulties of surveilling extensive land areas associated with farm operations in agricultural zoned. It is further understood that these other local governments have generally opted to not amend their zoning bylaws due to the risk of legal challenge and the cost of proceedings, however, Chilliwack recently amended its Zoning Bylaw to define and restrict such facilities to its Special Industrial Zone, while Mission requires proposed facilities to seek rezoning on a case-by-case basis. While there are seen to be merits in directing these types of facilities to industrial zones as these locations are seen to be relatively more secure and better serviced, Administration recognizes that the Regional District cannot prohibit the growing of marihuana from occurring within the ALR, that extensive parts of the rural areas are within the ALR, and that there exist a number of facilities in the ALR that could be suitably re-used for this purpose (i.e. the former Beaver Lodge Residential Training Centre in Electoral Area C ). Administration is also cognizant that ancillary activities associated with the growing of medical marijuana, such as research, development, packaging and distribution may not be considered a farm use by the ALC and could require non-farm use approval from the Commission. Options Administration considers that there are two options that could be pursued by the Board in relation to the issue of federally-licensed medical marijuana production facilities: Option 1 Status Quo That RDOS continue to assess medical marihuana uses as agricultural and permitted in the applicable Rural Zones. Any proposal involving a licensed commercial medical marihuana production facility in a zone in which agriculture is not a permitted use would be required to seek a rezoning from the Board. Option 2 Regulate That RDOS moves to introduce definitions related to the commercial production of medical marijuana, to direct such uses to agricultural zones (reflecting the ALC s position on this matter) and industrial zones (if additional processing of the product is required), and to introduce some general regulations related to the operation of such uses (i.e. minimum parcel size and setback requirements). This approach would require such facilities being excluded as a permitted use from the Resource Area, Large Holdings and Small Holdings zones (unless otherwise situated within the ALR). Similar to Option 1, any proposal seeking to undertake a licensed commercial medical marijuana production facility in a zone other than agricultural or industrial would be required to seek a rezoning from the Board. Option 3 Prohibit That RDOS amends Electoral Area Zoning Bylaws in order to prohibit the operation of medical marijuana facilities within the Regional District. This option may be ultra vires and open the Regional District to future legal challenges that would be difficult to defend against. Page 3 of 6
Respectfully submitted: C. Garrish, Planner Attachments: Attachment No. 1 Rural Zones which permit agriculture as a use Attachment No. 2 Information Bulletin Medical Marihuana Production in the ALR Page 4 of 6
Area H Area F Area E Area D-2 Area D-1 Area C Area A Attachment No. 1 Rural Zones which permit agriculture as a use agriculture as a permitted use RURAL ZONES Resource Area (RA) Watershed Resource Area (WRA) n/a n/a n/a n/a n/a n/a Agriculture One (AG1) n/a Agriculture Two (AG2) n/a n/a n/a n/a n/a Agriculture Three (AG3) n/a n/a n/a Large Holdings (LH) Large Holdings Two (LH2) n/a n/a n/a n/a n/a n/a Small Holdings One (SH1) n/a n/a n/a n/a n/a Small Holdings Two (SH2) n/a Small Holdings Three (SH3) Small Holdings Four (SH4) n/a n/a Small Holdings Five (SH5) n/a n/a n/a Page 5 of 6
Page 6 of 6 Attachment No. 2 Information Bulletin Medical Marihuana Production in the ALR