REPORT TO THE CHIEF ADMINISTRATIVE OFFICER FROM THE DEVELOPMENT AND ENGINEERING SERVICES DEPARTMENT

Transcription

1 REPORT TO THE CHIEF ADMINISTRATIVE OFFICER FROM THE DEVELOPMENT AND ENGINEERING SERVICES DEPARTMENT ON July 10, 2013 ZONING BYLAW AMENDMENT APPLICATION NO. ZBA00081 HOUSEKEEPING AMENDMENT TO PROVIDE REGULATIONS FOR THE SITING OF FEDERALLY-LICENSED MEDICAL MARIHUANA GROW OPERATIONS PURPOSE To amend Zoning Bylaw No regarding the siting of federally-licensed medical marihuana grow operations (MMGO) in the City of Kamloops, in accordance with Health Canada's recent adoption of the new Marihuana Medical Purpose Regulations (MMPR). SUMMARY At the November 27, 2012, Council meeting, a motion was carried to authorize a Public Hearing to consider amending Zoning Bylaw No based on the allocation of industrial zoning for MMGOs. Subsequent to the November 27, 2012, meeting, Health Canada formally announced that it was committed to revising the existing Marihuana Medical Access Program (MMAP) and released a draft of the MMPR. At that time, staff returned to Council with an updated report recommending Council delay the Public Hearing for the City's proposed regulations for the siting of MMGOs until after adoption of the MMPR. A motion at the January 15, 2013, Regular Council meeting to accept the report for information and postpone the Public Hearing was carried. Health Canada announced new federal legislation related to MMGOs on June 10, The new MMPR came into force as of June 2013 and will operate concurrently with the MMAP (to be repealed March 31, 2014) to facilitate the transition from the current program to the new regime. Following broad consultations with stakeholders, the Government of Canada was concerned that the former MMAP was open to abuse. The MMPR represent a comprehensive response to various concerns raised over the past number of years and during the public comment period that followed the introduction of the draft regulations in December The goal of the regulations is to treat marihuana, as much as possible, like any other narcotic used for medical purposes by creating conditions for a new, commercial industry that is responsible for its production and distribution. The regulations will provide access to qualitycontrolled marihuana for medical purposes, produced under secure and sanitary conditions, to those Canadians who need it, while strengthening the safety of Canadian communities. In addition, the new regulations will provide more options with regard to marihuana strains and commercial suppliers.

2 Page 2 Effective October 1, 2013, new applications for personal-use or designated-person production licences will no longer be accepted by Health Canada. At any time during the transition period to the new MMPR, individuals can switch from their current means of accessing marihuana for medical purposes to purchasing it from licensed producers under the new regime. KAMPLAN: The Official Community Plan and Zoning Bylaw No currently lack policy and regulations related to federally-licensed MMGOs. As a result, the following interpretations could be made: MMGOs are not permitted; therefore, the City is being exclusionary; MMGOs are permitted outright in any zone in the City; or MMGOs are permitted in A-1 (Agricultural) zones if interpreted as meeting the Zoning Bylaw's definition of "agricultural use", which means a use provided for the growing, rearing, producing, harvesting, storage, processing, and sale of agricultural products. Staff have provided this updated report, first presented to Council in November 2012, in order to align the City's proposed regulations for MMGOs with the new MMPR. Two attachments have been included with this report. Attachment "A" - Zoning Options for Medical Marihuana Grow Operations Map; and Attachment "B" - November 27, 2012, Council meeting minutes regarding Application No. ZBA00072 and January 15, 2013, Council meeting minutes regarding Application No. ZBA Because MMGOs are licensed and federally regulated, the City does not have the ability to prohibit this activity within City limits through the City's land use authority; however, the City has a limited ability to regulate the activity through land use regulations. Staff recognize the need to provide access to affordable medical marihuana to those who are suffering. The following criteria, included in the November 27, 2012, Council recommendation for the siting of MMGOs, were removed from this updated report because Health Canada has incorporated them as part of the new MMPR: MMGOs are required to produce the original MMAR licence, of which a copy will be made. MMGOs shall only be permitted indoors. The following criteria, not included in the November 27, 2012, Council recommendation for the siting of MMGOs, were added to better reflect the new MMPR and to help mitigate issues not accounted for within the MMPR: Formerly-licensed MMGOs under the MMAP shall be decommissioned by the current property owner and the structure/site remediated in accordance with City of Kamloops Controlled Substances Property Remediation Bylaw No MMGOs will require a municipal Business Licence before operation may begin.

3 Page 3 This report's recommendation involves the implementation of regulations for MMGOs in industrial zones in the City and meets the intent of the new MMPR by keeping MMGOs out of residential neighbourhoods. Through research and discussions with other BC municipalities and various City Divisions, including RCMP, Kamloops Fire Rescue, and the Social Planning Council, staff recommend that Council proceed with the implementation of regulations for MMGOs as outlined below. RECOMMENDATION: That Council: a) RESCIND the motions made at the Regular Council Meetings (Attachment "B") on: i) November 27, 2012, to authorize a Public Hearing to consider amending Zoning Bylaw No for Medical Marihuana Grow Operations; and ii) January 15, 2013, to postpone the Public Hearing to consider Zoning Bylaw Amendment Application No. ZBA00072 until such time that Health Canada adopts the new Marihuana for Medical Purposes Regulations; b) Authorize a Public Hearing to consider amending Zoning Bylaw No as follows: i) Division Three - General Regulations, by inserting: "311A Medical Marihuana Grow Operations Medical Marihuana Grow Operations (MMGOs) will not be detrimental to the health or general welfare of the people living or working in the surrounding area or negatively affect other properties or potential development in the surrounding area. MMGOs shall be permitted in I-2 (General Industrial) and I-3 (Heavy Industrial) zones subject to the following regulations: 1. MMGOs are required to provide a description of all discharges to air, sanitary sewer, storm sewer, streams, or groundwater. 2. MMGOs will require a Building Permit, pursuant to City of Kamloops Building Bylaw No , as amended.

4 Page 4 3. MMGOs will meet all other applicable municipal, provincial, and federal regulations. 4. A ventilation plan must be filed with the City and must include how the system prevents any offensive odour from leaving the building. 5. MMGOs shall be permitted in stand-alone buildings only. 6. No ancillary uses shall be permitted in a building containing a MMGO. 7. MMGOs shall be located no closer than 150 m from any residential zone, daycare facility, playground, community centre, school, public park, or any use catering to individuals under the age of The practice of diverting building-generated CO 2 gas or otherwise provided CO 2 gas to feed plants is prohibited. 9. Licensed MMGOs shall be decommissioned if inactive for more than one year and the structure/site remediated in accordance with City of Kamloops Controlled Substances Property Remediation Bylaw No , as amended. 10. Formerly-licensed MMGOs under the Marihuana Medical Access Program (MMAP) shall be decommissioned by the current property owner and the structure/site remediated in accordance with City of Kamloops Controlled Substances Property Remediation Bylaw No , as amended. 11. MMGOs will require a municipal Business Licence before operation may begin."; ii) Division Four, Definitions, by adding the following: '"Medical Marihuana Grow Operation" (MMGO) means a federally-licensed operation that produces and processes marihuana for medical purposes.

5 Page 5 "Marihuana for Medical Purposes Regulations" (MMPR) means the federal regulations through which Health Canada grants access to marihuana for medical use to those who are suffering from grave and debilitating illnesses.' iii) Division Forty-Eight, I-2 (General Industrial), Section 4801, Permitted Uses, by adding the following: "- Medical Marihuana Grow Operations (subject to Division Three, Section 311A);" and iv) Division Forty-Nine, I-3 (Heavy Industrial), Section 4901, Permitted Uses, by adding the following: "- Medical Marihuana Grow Operations (subject to Division Three, Section 311A)." COUNCIL POLICY One of the main purposes of City of Kamloops Zoning Bylaw No , Division One, is to protect the health, safety, convenience, and welfare of the public. The City does not currently have a policy or regulations specifically pertaining to MMGOs authorized federally through licences issued by Health Canada. MMGOs are federally regulated through the new MMPR administered by Health Canada. Because MMGOs are licensed and federally regulated, the City is not authorized to prohibit this activity within City limits through the City's land use authority; however, the City has a limited ability to regulate the activity through land use regulations. The authority to licence, regulate, and inspect MMGOs (personal-use or designated-person) is currently solely within the authority and jurisdiction of the federal government through Health Canada (the City retains its typical jurisdiction for all other aspects of the building, as noted below). Controlled Substances Property Remediation Bylaw No , 2005 A Bylaw to Regulate and Impose Requirements Respecting the Remediation of Real Property and Premises Damaged Through the Production, Trade, or Use of Controlled Substances Federally-licensed MMGOs are exempt from the Controlled Drugs and Substances Act as provided in the MMPR. The City does not have the authority to regulate this type of activity through Bylaw No as long as the activity is licensed through Health Canada and meets all local, provincial, and federal regulations. Illegal grow operations are those that are not licensed through the federal government and can therefore be regulated and enforced through Bylaw No

6 Page 6 DISCUSSION Health Canada announced new federal legislation related to MMGOs on June 10, The MMPR came into force as of June Following broad consultations with stakeholders, the Government of Canada was concerned that the former MMAP was open to abuse. The MMPR represents a comprehensive response to a number of concerns raised over the past years and during the public comment period following the introduction of the draft regulations in December The goal of the regulations is to treat marihuana, as much as possible, like any other narcotic used for medical purposes by creating conditions for a new, commercial industry that is responsible for its production and distribution. The regulations will provide access to qualitycontrolled marihuana for medical purposes, produced under secure and sanitary conditions, to those Canadians who need it, while strengthening the safety of Canadian communities. In addition, the new regulations will provide more options with regard to marihuana strains and commercial suppliers. Under the new regulations: The process for applicants and health care practitioners will be streamlined, eliminating the need for individuals to provide Health Canada with their personal information or apply to the department for an authorization to possess; Applicants for a commercial licence must send written notice to municipal government officials alerting them of their federal MMPR application; Personal and designated production by individuals in their homes will be eliminated as of March 31, 2014; Current options to access marihuana for medical purposes will be replaced by regulated, commercial-licensed producers that will be able to produce a variety of strains, thereby offering more choice to individuals who use marihuana for medical purposes; Licensed producers will be required to provide municipal government officials with the original federal MMPR licence, of which a copy will be made and kept on file. Licensed producers will have to demonstrate compliance with regulatory requirements, such as quality control standards, record keeping of all activities, inventories of marihuana, and physical security measures to protect against potential diversion; Licensed producers will distribute marihuana for medical purposes to the registered client via a secure courier; Storefronts or retail outlets will not be permitted; and For the first time, nurse practitioners will be able to support access to dried marihuana for medical purposes, if permitted within their respective province or territory. Under the new regulations, licensed producers will have to meet extensive security and quality control requirements. For example, when potential licensed producers apply for a licence from Health Canada, they must demonstrate that: They employ a quality assurance person with appropriate training, experience, and technical knowledge to approve the quality of its dried marihuana;

7 Page 7 The production site is indoors and not in a private dwelling, which would reduce the risk of diversion posted by outdoor production as well as reduce health and safety risks associated with producing marihuana in a private dwelling; The production site includes restricted-access areas, which would include all areas where a licensed activity is conducted with marihuana and cannabis (e.g. laboratory, production room, etc.); Access to the production site is controlled at all times, including 24/7 visual monitoring systems and an intrusion detection system to detect unauthorized access; Key personnel hold a valid security clearance, issued by the Minister of Health; and Applicants will provide written notification of their application with details regarding the location of the production site to the local police force, local fire authority, and local government. Health care practitioners will sign a medical document enabling patients to purchase the appropriate amount of medical marihuana for their medical condition from a licensed producer approved by Health Canada. In order to facilitate the transition to the new regime, both programs will operate concurrently until March 31, Program participants can continue to produce marihuana for medical purposes, designate someone to produce for them, or purchase it from Health Canada until that date. Effective October 1, 2013, new applications for personal-use or designated-person production licences will no longer be accepted by Health Canada. At any time during the transition period, individuals can move from their current means of accessing marihuana for medical purposes to purchasing it from licensed producers under the new regime. The current program costs Canadian taxpayers millions of dollars each year, because the $5/gram charged to program participants who choose to purchase from Health Canada is heavily subsidized. Under the new regime, licensed producers will set the price for marihuana for medical purposes. Once the first established licensed producers have set a price for dried marihuana, Health Canada will align the price of its supply with the market price so as not to undermine the creation of this new industry. KAMPLAN: The Official Community Plan and Zoning Bylaw No currently lack policy or regulations related to federally-licensed MMGOs in the City. Frustration had been expressed by the RCMP and the City's Property Use Inspector as to the inability to track these operations based on Health Canada's inability to release information on the location of the MMGOs, as well as the allowance of MMGOs in residential dwellings. The new system aims to rectify this issue by requiring notice of federal application to local authorities as part of the approval process for federal MMGO licensing and prohibiting grow operations in residential dwellings. Residential dwellings that were formerly licensed for MMGOs will now be required to ensure that they are remediated to a habitable state (if not already) as per Controlled Substances Property Remediation Bylaw No , Unfortunately, due to Health Canada's inability to release information pertaining to MMGOs under the MMAP, enforcement of this regulation will be difficult and likely based on complaints received. Comprehensive home inspections by prospective buyers will also help pinpoint any health and safety issues that might have resulted from a former residential MMGO.

8 Page 8 This report provides Council with an opportunity to adopt zoning regulations for MMGOs in appropriate zones for mitigation of health and safety issues in accordance with the new MMPR. This report also allows Council to consider a legal MMGO definition that speaks to the requirement of meeting all applicable local, provincial, and federal regulations. MMGOs that do not meet all applicable regulations would be deemed illegal and dealt with through City of Kamloops Controlled Substances Property Remediation Bylaw No , Prior to Council adopting regulations for the siting and management of MMGOs in the City of Kamloops, staff recommend a review of the following considerations: An appropriate zone(s) should be designated in the City for MMGOs, which excludes them from residential neighbourhoods as per the new MMPR. Regulations should take reasonable steps to address the primary nuisance complaint (smell) and the life safety concerns for building occupants, emergency response personnel, and area residents (e.g. mould, CO 2 poisoning, electrical/fire hazards, and potential grow rips [theft from marihuana grow operations]). Staff recommend the following regulations: 1. MMGOs shall be permitted on industrial land where residential dwellings are absent; infrastructure is likely already in place to some degree; and security and monitoring by the RCMP, Kamloops Fire Rescue, and the Property Use Inspector are more easily achievable. 2. Each MMGO shall be reviewed based on an established set of criteria to determine the feasibility and associated safety and security of a grow operation for any given property. The criteria are as follows: MMGOs are required to provide a description of all discharges to air, sanitary sewer, storm sewer, streams, or groundwater; MMGOs will require a Building Permit, pursuant to City of Kamloops Building Bylaw No , as amended; MMGOs will meet all other applicable municipal, provincial, and federal regulations; A ventilation plan must be filed with the City and must include how the system prevents any offensive odour from leaving the building; MMGOs shall be permitted in stand-alone buildings only; No ancillary uses shall be permitted in a building containing a MMGO; MMGOs shall be located no closer than 150 m from any residential zone, daycare facility, playground, community centre, school, public park, or any use catering to individuals under the age of 18; The practice of diverting building-generated CO 2 gas or otherwise provided CO 2 gas to feed plants is prohibited; Licensed MMGOs shall be decommissioned if inactive for more than one year and the structure/site remediated in accordance with City of Kamloops Controlled Substances Property Remediation Bylaw No , as amended; Formerly-licensed MMGOs under the Marihuana Medical Access Program (MMAP) shall be decommissioned by the current property owner and the structure/site remediated in accordance with City of Kamloops Controlled Substances Property Remediation Bylaw No , as amended; and MMGOs will require a municipal Business Licence before operation may begin.

9 Page 9 Refer to Attachment "A", Zoning Options for Medical Marihuana Grow Operations, for a visual representation of potential MMGO locations based on proposed industrial zoning. Staff do not recommend permitting MMGOs on agricultural land. Emergency response times are likely longer as locations could be remote, and agricultural land is considered residential. The intent of the new MMPR is to remove the potential risk to residential neighbourhoods and innocent bystanders. In addition, local law enforcement is not supportive of MMOGs in agricultural zones. The City's Agriculture Area Plan (AAP), which is currently under development, is anticipated to speak to the need for policy development that directs non-farm use structures to the most appropriate location on agricultural land so as not to compromise the agricultural land base and take advantage of existing services and property access. The AAP is expected to be presented to Council in October As such, it is likely premature to consider MMGOs on agricultural land. An amended motion to permit MMGOs on agricultural land where residential dwellings are absent and accessibility to law enforcement can easily be achieved was defeated at the November 27, 2012, Council meeting. Any applicant wishing to operate an MMGO on agricultural land would still have the opportunity to apply for a rezoning to allow this use on agricultural land on a site-specific basis. Regulating MMGOs Staff suggest that MMGOs be permitted in I-2 (General Industrial) and I-3 (Heavy Industrial) zones based on public health and safety issues associated with MMGOs. City of Kamloops Zoning Bylaw No includes definitions for general industry and heavy industry. They are as follows: Industry, General: Industry, Heavy: Means a use engaged in the manufacture, predominantly from previously prepared materials, of finished products or parts including processing, fabrication, assembly, treatment, packaging, incidental storage, and wholesale distribution of such products, but excluding heavy industry. Means a use engaged in the storage, processing, or manufacturing of materials or products predominantly from extracted, bulk, or raw materials or a use engaged in the storage of, or manufacturing processes that potentially involve hazardous or commonly recognized offensive conditions, but specifically excluding the storage processing or handling of special wastes. Staff are of the opinion that MMGOs are better suited to industrial zoning, with certain parameters as noted above for the following reasons: 1. Staff believe that medical marihuana is a "medical" product rather than an "agricultural" one. The growing of medical marihuana under the MMPR carries potential safety and security implications typically not associated with an agricultural use.

10 Page Based on research and conversations with local law enforcement, staff believe MMGOs are likely easier to manage, monitor, and respond to in heavy industrial zones. Other communities have experienced problems with MMGOs in industrial and commercial zones when the operation's buildings are attached to other commercial/industrial units. To avoid this issue, staff recommend that MMGOs only be permitted in stand-alone buildings with no ancillary uses permitted. This corresponds to proposed federal legislation that speaks to removing this use from residential dwellings and neighbourhoods where more innocent bystanders could be impacted. 3. MMGOs require clinical testing, quality control, processing, packaging, and labelling in addition to growing the product per the MMPR. As such, the operation is better suited to industrial zones where manufacturing is permitted. Amendments to Zoning Bylaw No would ensure there is better direction for staff, residents, and Council as to the siting of licensed MMGOs within the City of Kamloops. By permitting MMGOs in heavy industrial areas, the potential negative health and safety implications of these operations can be mitigated. Adopting zoning regulations for MMGOS at this time, with the recent adoption of the federal MMPR, will ensure the City of Kamloops is consistent with this new commercial production system. SUSTAINABILITY IMPLICATIONS Land The Sustainable Kamloops Plan (Plan) indicates that it is the City's responsibility to ensure sufficient land is available on an ongoing basis to meet the community's needs for housing, business, industry, institutions, and other activities. Community Safety Community safety is indicated as a key principle and component of community sustainability in the Plan. Success is identified as "Implementing initiatives recommended in the Kamloops Social Plan that would reduce criminal activity, with a special focus on providing housing and addressing other social issues in recognition of the link between these factors and crime." Health and Wellness Health and wellness are identified as key principles of community wellness in the Plan, which specifically states that improved quantity and quality of life will be accomplished by "maximizing the potential of all directly and indirectly related inputs to health and wellness and ensuring that resources dedicated to health and wellness are optimized."

11 Page 11 M. Kwiatkowski, P.Eng. Development and Engineering Services Director Approved for Council Consideration: Author: M. Luciani, MCIP, Planner Reviewed by: R. L. Lambright, MCIP, Planning and Development Manager ML/kjm/lm/dla Attachments

12 Rayleigh Inset Dallas Inset Campbell Creek Inset WESTSYDE I-2 I-3 I-2 BATCHELOR HEIGHTS KAMLOOPS INDIAN RESERVE NO.1 Zoning Options For Medical Marihuana Grow Operations ATTACHMENT "A" RANQUILLE I-3 I-3 BROCKLEHURST MISSION I-3 FLATS I-3 NORTH SHORE CLASSIFICATION AND ZONING A-1 (Agricultural) Zoning I-2 or I-3 (Heavy Industrial) Zoning 150 meter MMGO Exclusion Buffer Around Schools, Daycares, Playgrounds, Parks and Community Centres 1:62,500 ZONES CONTAINING RESIDENTIAL DWELLINGS Areas under current development, zoned residential and currently vacant, developed since 2006 or are potentially residential (subject to re-zoning). This also includes other city zones containing residential dwellings. *Excludes A-1 (Agricultural) Zoning *Areas shown in white correspond to various zoning types, including Open Space, Parks, Commercial, and Light Industrial. Meters 0 1,000 2,000 4,000 6,000 8,000 MOUNT DUFFERIN I-3 TRU SOUTHGATE WEST END LOWER SAHALI UPPER SAHALI CITY CENTRE VALLEYVIEW I-2 I-2 JUNIPER RIDGE DALLAS LAC LE JEUNE ABERDEEN ROSE HILL BARNHARTVALE

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