2018-01-12 / Front Page

Plans for Kennebunk pot ban put in place

By Wm. Duke Harrington Staff Writer


Members of the Kennebunk Planning Board including, from left, Chairman Chris MacClinchy, Robert Metcalf, Richard Smith and Janice Vance, vote unanimously at a special meeting, Monday, Jan. 8, to recommend that selectmen approve a proposed zoning ordinance that will ban from town the cultivation, manufacture and sale of marijuana products for the retail market. Possession, limited growing, and private use would remain legal under state law, although the question of the federal ban persists. Selectmen planned to take up the proposed local ban at their Jan. 8 meeting. That session took place after the deadline for this week’s Post, but on Monday, a majority of the board signaled their intention to pass the ordinance on to voters at a special town meeting, March 13. (Duke Harrington photo) Members of the Kennebunk Planning Board including, from left, Chairman Chris MacClinchy, Robert Metcalf, Richard Smith and Janice Vance, vote unanimously at a special meeting, Monday, Jan. 8, to recommend that selectmen approve a proposed zoning ordinance that will ban from town the cultivation, manufacture and sale of marijuana products for the retail market. Possession, limited growing, and private use would remain legal under state law, although the question of the federal ban persists. Selectmen planned to take up the proposed local ban at their Jan. 8 meeting. That session took place after the deadline for this week’s Post, but on Monday, a majority of the board signaled their intention to pass the ordinance on to voters at a special town meeting, March 13. (Duke Harrington photo) KENNEBUNK — Based on turnout at a town hall public hearing Monday, there is no burning desire among Kennebunk voters to drive from town the scourge of legal marijuana. But then, neither is there a pent up desire to make the herb safe for retail sale.

Seven people attended the meeting, convened as part of a special combined session of the town planning board and board of selectmen. And, in truth, at least half of those who showed were frequent flyers, who likely would have been on hand to do their civil duty regardless, whether the proposal had been to forever outlaw marijuana, margarine or marmalade.

In November 2016, Maine voters elected to legalize marijuana, with 50.3 percent in favor. In Kennebunk the vote was 3,848 in favor, with 3,578 opposed — a slightly higher 51.8 percent majority. But since then, the state legislature has failed to counter a gubernatorial veto of rules promulgated to regulate the licensing and legal sale of marijuana for the retail market. Gov. Paul LePage said he could not in good faith sign off on the needed changes to state statute so long as marijuana remains a scheduled drug under federal law.

According to attorney Mark Bower of Portland law firm Jensen Baird — on band at Monday’s hearing in place of regular town attorney Natalie Burns — it’s now looking like the Legislature will not have its ducks lined up for a second go until December, well into the next session. Since the state referendum vote, as it waits to key off of whatever rules the state might put in place, Kennebunk has approved and twice renewed a moratorium on accepting site plan review applications for any operation related to the retail sale of marijuana, including cultivation, product manufacturing, or establishment of so-called “social clubs” for consumption.

The current moratorium is set to expire April 4.

Since last July, town hall officials have kicked around the idea of outlawing all commercial marijuana operations, a local option ban allowed under legalization law approved at the 2016 referendum. However, by the time the concept, based on similar language adopted by Wells voters in June, got on a planning board docket, it was too late to make the November vote.

At that time, voters in Kennebunkport adopted a commercial pot ban of their own. Arundel voters last spring rejected imposing a moratorium, adopting a wait-and-see attitude on state action.

Kennebunk has since vacillated between those two extremes. But on Monday, the planning board voted 4-0 to recommend that a permanent ban be ensconced into town zoning rules. Selectmen were scheduled to take up the proposal at their regular meeting on Tuesday — a session which took place after the deadline for this week’s Post — but at Monday’s hearing, a majority of the board signaled their intention to pass the ordinance on to voters at a special town meeting, March 13.

Two of the four people who spoke during the public hearing issued brief comments of support for the proposed ban.

“I applaud the progress that has been made to date and I would encourage both boards to get this on the ballot so the voters can decide,” Sea Road resident Lionel Menard said.

“I want to thank everybody who has spent so much time and has been really thorough and has been going over and above, because you are considering what people really want and what is best for this town,” said Sandy Tillman.

However, John Costin, a member of the town’s budget board, was more circumspect of the ban. What real research had municipal officials done, he wondered aloud, to demonstrate the need to ban a product for which voters had already signaled support. And more importantly, he asked, could that material, if it existed, be made available.

“I have a very large box full of all the information that was collected under this topic, and you are more than welcome [to review it],” Town Planner Judy Bernstein said.

“Well, when I said, ‘available,’ I meant to the average voter, not circus freaks like myself,” Costin said. “I might come look through you box, but most people are not going to.”

One of the primary reasons for a local ban, frequently stated by planning board members and selectmen alike, is that the town cannot hope to take in near enough from taxation on the sale of marijuana, at whatever rate the state allows, to pay for the infrastructure that would be needed to assure the product is sold and handled safely, or to deal with the influx of reefer madness that might result as other area towns enact bans of their own, potentially forcing stoners to trek in Kennebunk like pilgrims to Mecca.

However, under continued questioning from Costin, officials admitted that whatever is in Bernstein’s Box, it does not include exact estimates on what the cost to the town might be.

“In terms of the economics, we’ve got a lot of information that’s been forwarded to us, but nothing from our own public services departments in terms of what the cost implications are, other than that they can’t really quantify it,” planning board member Robert Metcalf said.

“The police chief said that no matter how much money we think we can get, it’s probably going to cost us much more than that to regulate or enforce the program as it is,” board chairman Chris MacClinchy said, offering the closest thing to a real number.

Costin cited his own calculations for how much tax revenue retail marijuana sales might bring to the town, but planning board member Janice Vance said the issue of paying for added infrastructure, whether than means adding one more beat cop, or something more, was not actually the key motivating factor in the board decision.

“That was not really a prime driver for us at all,” she said. “Typically, as a land use board, we are looking at health, safety and welfare. Economic conditions and benefits, or lack thereof, is not typically under our purview.”

“This [proposed ban] is to protect the town,” Metcalf said. “We have done a lot of research, and there are a lot of unknowns out there. You know what this board is like, we double-dot the Is and triple-cross the Ts before we make a determination.

I think we found there was enough information out there in terms of the potential impact to this community, never mind a dysfunctional legislature that can’t get their ass out of the way. We can’t want for them. We need to put something in place to protect the town.”

However, Costin asked why the town could not simply renew the existing moratorium. Bower confirmed that state law allows the town to do just that, so long as it can demonstrate that the issues which created the need for the moratorium still exist, despite the best efforts of the town to address the problem.

“This is not a ban forever,” Selectman William Ward said. “This is not [a case of] lock the doors and they will never envision this again. But for now, it doesn’t make sense to open the doors to it when the state is in flux as to how they would regulate it.”

Costin countered that retail sales cannot be allowed regardless, until state licensing rules are in place.

“So, saying we’ve got to do this now so that we are on control of it makes no logical sense,” he said.

However, Bower confirmed after the meeting that while its not yet known to have happened anywhere in the state, the lack of a moratorium or banning ordinance could open the door for an license squatter — someone who might submit a site plan application which, while it would not be approved, would freeze local zoning rules and force the town, whenever it is able to grant a license, to review the proposal under zoning in place at the time.

Still, Costin maintained that the moratorium serves that purpose, and that a full-in ban, once enacted, is not likely to be reversed without a great investment of time and money on all sides, for and against allowing local pot shops.

At this point, Selectman Blake Baldwin stepped in to note that the November 2016 vote should not be taken as the final word on the topic. Many Kennebunk residents might have voted to legalize marijuana, but would still rather it not be sold in Lower Village, or Main Street, or in West Kennebunk shops near the schools, he said.

“I think the issue is not one of morality, although some people may see it as such,” Baldwin said. “It’s a question of community standards. That can be a squishy concept, but it’s one that is best determined by putting it to a vote — giving the town the right to actually opine on whether the community standard favors a retail establishment or if they would rather not have that in this community.”

“I think the distinctions is, people may say, I don’t care one way or the other whether or not recreational marijuana is the law of the state, or whether people procure and consume it legally, we just don’t want the dispensaries, the social clubs, the testing laboratories, or the growing facilities located in our community,” he said.

Costin’s wife Rachel Phipps, a member of both the school board and the town’s economic development committee then rose to chastise the two boards for not producing the numbers Costin requested while on the road to their recommendation to voters of a full-on ban of all commercial, non-medical, marijuana operations in town.

“I am a little bit surprised that we have done absolutely no economic analysis of this,” she said. “I have sat in this room for hours and hours and hours and hours listening to how we need to increase our tax base and increase our tax revenue. We are on the verge of having to cut services, and we are not supporting our social services to the level they are requested.

“This has the potential to be an enormous new revenue source for the town,” Phipps said. “I think it is absolutely due diligence on the part of town leaders to do an economic analysis. The fact that one hasn’t been done is really kind of shocking to me.”

Phipps also pointed to the disparity in local rules that would exist if the town outlaws marijuana, but continues to allow the sale of alcohol as a social norm.

Finally, Costin and Phipps both faulted selectmen for plans to schedule a special town meeting in March to vote on the ban. If a permanent ban is going to go before voters, they agreed, it would be better to have that happen as part of the annual town meeting warrant in June, which typically draws more people to the polls than a single-issue ballot in the dead of winter. The likely result of a special vote in March, they said, would be a disproportionate turnout from people who support the ban.

However, Selectman Ed Karytko, drew comparisons to a January 2014 school renovation bond referendum, which was defeated, forcing a re-do at a lesser amount the following year.

“We had one of the biggest turnouts you could ever imagine for that particular vote, because people cared,” he said. “If people care about this issue, they’ll be out.”

Staff Writer Wm. Duke Harrington can be reached at news@kennebunkpost.com.

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