Setbacks complicate Kenai marijuana permitting

The question of how to measure the minimum distance Kenai code mandates between marijuana businesses and churches, schools, recreational facilities and substance abuse treatment centers has created uncertainty for both cannabis entrepreneurs and those arguing against them — most recently in the Kenai Planning and Zoning commission’s permitting of Red Run Cannabis’ new cultivation facility in Kenai.

 

Red Run already grows marijuana in its Kenai store, and plans to start a second growing operation in the building that previously housed the Kenai Moose Lodge. Across McKinley Street to the east of the commercial square where the building stands is Kenai Christian Church. City code requires the outer wall of a commercial cannabis building to be 500 feet from the “main public entrance” of a church. Whether Red Run’s new building is outside this setback depends on which church door it’s measured from: the former Moose Lodge is 504 feet from a northern entrance; from another door on the west side, it’s 420 feet.

Kenai administrators designated the more distant north entrance — a covered double door facing the church’s parking lot — as the church’s main public entrance, allowing planning and zoning commissioners to unanimously permit Red Run’s grow operation at their June 28 meeting. The west entrance is a single door adjacent to a single row of parking spaces.

“This is one of those things we’d hoped we’d never get into,” Planning and Zoning chair Jeff Twait said. “A sticky wicket, if you will, as far as locations and proximities to front doors and that kind of thing.”

Kenai City Planner Matt Kelley told commissioners that in the absence of an encoded definition, city administrators “pretty much have to make a decision” about which door is the building’s main public entrance.

“In speaking with Kenai Christian Church, and in conducting a site visit both during the week and on multiple Sundays, staff observed that the public primarily uses the covered entrance, which is located off the main parking area, to access the church,” Kenai Planner Matt Kelley wrote in his report to the Planning and Zoning Commission, recommending that Red Run’s growing facility be permitted.

Kenai Christian Church representatives objected to the Red Run facility and to Kenai’s door designation. Church elder Robert DeVolld wrote in a letter to commissioners that the north door designated the main entrance “is used mainly on Sunday morning, Wednesday night, and Thursday morning by people attending morning worship, prayer hour and women’s bible studies. However, for the most part, this section of our facilities remains locked for a major portion of every week — all day and all night.”

DeVolld’s letter stated that the west door is the one used by church staff and Bible study students during the remainder of the week, and listed 15 arguments in favor of also considering it a main entrance.

Kenai Christian Church adult education director Dave Daniel said the Red Run facility may project a poor image to congregation members and church visitors, and also gave concerns related to marijuana retail — including the possible on-site consumption allowance Alaska’s Marijuana Control Board may give to cannabis stores at its September meeting — that aren’t allowed at cultivation facilities. Red Run’s plan for the new building is only for cultivation and manufacturing products such as marijuana concentrates and edibles, its owners said.

Red Run co-owner Eric Derleth said the building will be “low-key,” without any evidence from the outside of the grow operation inside. It won’t be open to the public and “won’t have any signage that says ‘hey, we’re Red Run Cannabis’ — maybe a small sign that says ‘deliveries’ or something, with our name in small print,” Derleth told commissioners.

Setbacks

Setbacks and how to measure them have been part of the Kenai city government’s discussion of marijuana since it decided how to permit the industry in 2015. State regulations require a 500 foot setback, measured using the shortest pedestrian route between a marijuana business entrance and the buffered establishment’s property boundary. Kenai measures its setbacks with straight lines, and in two different ways: between property lines in the case of schools (for which Kenai doubled the setback to 1000 feet) and recreation facilities, or from wall-to-entrance in the case of churches, correctional facilities, and substance abuse treatment centers.

Kenai city attorney Scott Bloom wrote in an email that he’d expected questions to arise about setback measurement because “measuring buffers… is a problematic area in general.” Speaking about Kenai’s marijuana rules to a Kenai Chamber of Commerce audience in November 2016, Bloom said that with the scattering of buffered establishments around town, it takes close examination to determine where marijuana businesses can and can’t go. Boyd said this was the case with Red Run’s decision to use the old Moose Lodge.

“Kenai itself, the way the city developed, there’s a lot of schools and parks and things across the city, especially that central area where the general commercial zoning is,” Boyd said. “…It makes Kenai tight.”

Local politics may make Kenai real estate valuable to the cannabis industry: a ballot initiative in this October’s election could prohibit commercial marijuana outside the Kenai Peninsula Borough’s incorporated cities, and Soldotna, the other incorporated city on the central peninsula, is drafting a ban on it. Location, however, is a significant obstacle within Kenai as well. City requirements may have driven marijuana businesses to Kenai’s edges.

“I think the buffer zones almost knock out the core of town, and that makes it a little difficult because to get a retail store you have to have commercial (zoning),” said cannabis entrepreneur Deneice Isaacs, who, with her husband Ron Isaacs, also received Planning and Zoning’s permission on June 28 for their cultivation, manufacturing, and retail business Majestic Gardens.

The couple have long experienced real estate problems in relation to cannabis. They first tried to get Kenai’s planning and zoning permit for Majestic Gardens in June 2016, when commissioners unanimously rejected it because their then-planned location in Swanson Square was approximately 455 feet from the city-owned softball fields on Forest Drive — a recreational facility with a 500 foot setback. In that case, the setback was measured from the edge of the ball field parcel.

After losing an appeal of the denial, the Isaacs said they made deals on four other properties seeking a location for Majestic Gardens, all of which fell through. One was inside a setback created by Kenai’s Leif Hanson memorial park, while others had landlords unwilling to rent space for marijuana. Deneice Isaacs said the couple spent about $15,000 seeking real estate for Majestic Gardens.

Now that Kenai has permitted Majestic Gardens, Deniece Isaacs said its prospective location is an appropriate one for her and her husband. They plan to build their shop on the property formerly occupied by the bar and restaurant Larry’s Club, where the couple met in 1981, and which burnt down in the early 1990s. In addition to marijuana, they plan to sell gardening supplies at the store.

Reach Ben Boettger at ben.boettger@peninsulaclarion.com

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