Missouri judge to consider if Independence medical marijuana rules are too restrictive
A Missouri judge has ordered state regulators to hold off on determining the fate of a marijuana dispensary license application in Independence while a lawsuit challenging city regulations makes its way through the court.
Healing Center of Kansas City in November sued the Missouri Department of Health and Human Services and the city of Independence, saying city zoning regulations on medical marijuana dispensaries were overly restrictive. Lawyers sought a temporary restraining order ahead of the state’s expected decision on dispensary applications later this month.
Circuit Court Judge Daniel Green granted that request on Thursday. His temporary restraining order says the state cannot deny the application on the basis of Independence’s zoning rules before a Jan. 27 hearing on the case. The Healing Center is owned by John Richards.
Healing Center of Kansas City has sought to open a dispensary in Independence, but its lawsuit claims the city zoning rules create an undue burden on the applicant in violation of the Missouri Constitution. Missouri voters approved a constitutional amendment in November 2018 allowing medical marijuana. The constitution bars local governments from prohibiting medical marijuana operations and regulations that are “unduly burdensome.”
“If dispensaries can’t be located, that complicates the ability of the patient to exercise his or her constitutional right,” said Lowell Pearson, attorney for the plaintiff. “If nobody can sell it, then nobody can buy it.
“It really is an extraordinary restraint.”
The constitution allows cities to limit operations within 1,000 feet of a school, daycare or church. But the Independence City Council in July implemented further restrictions. The city doesn’t allow medical marijuana operations within the historic district or within 1,200 feet of the Truman Library. The council also limited dispensaries from opening up within 500 feet of a neighborhood or residence. And a dispensary cannot open within 2,500 feet of another dispensary. Dispensaries must also seek a special use permit.
Healing Center of Kansas City’s lawsuit alleges those rules eliminate 88% of the commercially zoned space in Independence that could house dispensaries. The suit says 10 of the 18 operators that applied to open dispensaries in Independence had proposed locations within 500 feet of residences.
Since July, the council has contemplated rolling back its restrictions.
During a Monday work session, staff showed the Independence City Council comparisons to how peer cities like Blue Springs and Columbia handled zoning and licensing for marijuana facilities.
Council members did not take votes, but during the discussion seemed keen on doing away with the special use permit and some of the restrictions.
On Tuesday, the body will consider repealing its previous ordinance that created additional zoning regulations and mandated special use permits for dispensaries. A related agenda item would still require medical marijuana businesses to submit a security plan, an operations and management plan and emergency response plan to the city when seeking a business license.
City spokeswoman Meg Lewis said the changes to the zoning rules wouldn’t go into effect until at least Feb. 13.
“I think that’s probably too late to help anybody, frankly,” Pearson said.
The state is expected to issue dispensary licenses on Jan. 24, taking into account whether applicants meet local zoning guidelines.
Pearson noted that the judge’s restraining order is fairly narrow: It only affects his client, not other applicants who may be disqualified by the city’s zoning.
In an answer to the lawsuit, Missouri Attorney General Eric Schmitt said the applicant failed to exhaust administrative remedies before filing suit. His filing also noted that the applicant had not yet been denied a license.
Attorneys for Independence argued the plaintiff lacks standing and pointed out that Healing Center of Kansas City did not specify its proposed location in Independence and whether it would be disqualified by city regulations.
