Planning Commission proposes medical marijuana recommendation

The planning commission recommended a set of regulations for medical marijuana to the city council during its regular meeting Monday, Feb. 12.

Under these proposed rules, medical marijuana dispensaries and cultivation facilities could be allowed as a conditional use in commercial, industrial and agricultural zoned properties.

Because state law requires the regulation for these facilities be the same as for pharmacies, which are currently in the “general office” category, making them a permitted use in most of these zones, pharmacies would require a conditional use permit under this proposed regulation

Associate planner Sarah Bingham said that, because the vast majority of property in Bella Vista is zoned residential, the space on which medical marijuana related facilities could be built is extremely limited and mostly concentrated near U.S. Highway 71.

The previously-discussed provision to double the buffer zone required by state legislation was removed from the proposal. Under state law, a dispensary may not be placed within 1,500 feet of a school, church or daycare center and that buffer zone is 3,000 feet for cultivation facilities.

Bella Vista staff attorney Jason Kelley said that he found cause for concern in the requested increase for those buffer zones.

“I’ve seen the proposal that has been drafted,” he said. “I want you to make sure you understand our limits of what we can do here.”

Arkansas Constitution of 1874 Amendment 98, he said, legalizes medical marijuana but permits cities some control in the form of reasonable zoning restrictions. But those restrictions, he said, need to be identical to pharmacies.

“That means a grow operation has to be treated the same as a Walgreens,” he said.

Extending the buffer zone, he said, would severely limit the placement of pharmacies and may be stepping beyond the purview of zoning regulations.

Additionally, he said, increasing that buffer may open the city to some liability. Someone could sue, he said, and the city may not win — though because this issue is so new, it’s difficult to say how the courts would handle a dispute like this.

Additionally, he said, because the state law will only allow eight licenses for cultivation facilities, it is extremely unlikely one will pop up in Bella Vista.

Chris Suneson, director of the Community Development Services department, said that it was important to consider the legally required equivalency and whether the city is placing excessive restrictions on pharmacies.

The commission voted unanimously to remove the two provisions in the proposed rules that could extend these buffer zones.

Chairman Daniel Ellis said there wasn’t much left to discuss with this issue, though it is important to recognize the commission is a recommending body and the city council will have the last word.

“I think everything else in here is pretty cut and dried,” he said.

The commission voted unanimously again to approve the change in regulation, which will be examined by the city council during its Tuesday, Feb. 20, work session and Monday, Feb. 26, regular meeting.

The commission also unanimously approved a lot split on McNelly Road in the city’s planning area.

Bingham explained that the property owners were splitting off the lot’s southwest corner, removing 5.3 acres and leaving 47.93 acres on the parent parcel. A 30-foot right-of-way is also being dedicated, she said, which was not in place before.

“The smaller tract will not have direct street frontage but it does have an access easement to McNelly Road,” she said.