Rockland City Council voted 3-2 at a special meeting on August 22 to pass a controversial 60-day moratorium on allowing medical marijuana facilities in the city. Meanwhile, opponents are already hinting that they may take legal action. Mayor Valli Geiger and Councilors Amelia Magjik and Lisa Westkaemper voted for the proposal while Councilors Ed Glaser and Adam Ackor voted against it.

Geiger said that she sponsored the moratorium to slow down the process and give the city time to decide how it wants to regulate medical marijuana retail stores or if it wants to allow them at all.

“And if we do want to opt in, how and when and how many?” said Geiger. “That to me is the purpose of the moratorium, to protect the city’s ability to decide its future in terms of opting in or opting out.”

The city’s current zoning ordinance, which states that medical marijuana production facilities can be used “for cultivation, processing, storage, and/or distribution” of medical marijuana, has caused confusion about whether production facilities can operate solely as retail medicinal pot stores. The city’s code enforcement office has interpreted it to mean that a facility whose primary purpose is to cultivate and produce medical marijuana can “incidentally” sell to patients. But at least one applicant believes the ordinance allows for retail stores, which councilors supporting the moratorium say was not the original intent of the production facility ordinance passed last year.

The city’s attorney, Mary Costigan, noted that medical marijuana stores were previously in a legal “grey area,” but a law passed by the Legislature on July 9 prohibits them unless a municipality votes to allow them. The problem is that the Legislature is still in session, and the new law doesn’t take effect until 90 days after it adjourns. Under the law, stores that apply before the law takes effect will be grandfathered in. Costigan said that many Maine towns are passing moratoriums to prevent medical marijuana caregivers from rushing to apply for store permits before the state law takes effect.

The city has so far received four medical marijuana production facility applications, according to the Rockland code enforcement office. Medical caregiver Nick Westervelt of Lincolnville received planning board approval to run a medical cannabis production facility in the former First Baptist Church at 500 Main Street. Caregiver Mark Crockett is also proposing to put a medicinal marijuana establishment at 266 Main Street, where Hill’s Seafood is located.







Both Crockett’s attorney and a representative for property owners are challenging the legality of the proposed moratorium language. Belfast attorney Joe Baiungo, who is representing Crockett, questioned the legal justification of the moratorium, which states that the “and/or” language prior to the word “distribution” in the production facility ordinance was a “scrivener’s error” that has led to a “misinterpretation” that retail stores are allowed. He said that the moratorium is an “extreme measure” and a better solution would be to just amend the ordinance to correct the error.

“This is not something that you can just do for any reason,” said Baiungo. “Your ordinance lays out three reasons why you can enact an emergency ordinance — essentially to protect life, property and the public peace. Those are the words that they use when adopting an emergency ordinance. And I know people are pretty emotional and fired up about the medical marijuana law, but I doubt there’s going to be a riot in the streets if we try and just correct the scrivener’s error.”

Baiungo urged the council to delete language that makes the moratorium retroactive to early July. He said if they removed that language, Crockett’s application would be the only one pending that would go through. Douglass Erickson, a commercial real estate broker representing three property owners with prospective medical cannabis facility tenants, cited several court cases that he said could be the basis of a legal challenge if the city moves forward with the moratorium.

“It’s our opinion, including the owners of the property, that what you’re doing is not right,” said Erickson. “And if these people were to take the matter before the courts they feel relatively confident that they would probably win.”

However, Costigan expressed doubt that a legal challenge would be successful.

“If someone were to challenge a moratorium, the burden is to establish the complete absence of any state of facts that would support the need for the enactment,” she said. “So that’s a rather high bar to beat.”