This map, taken from the Kenai Peninsula Borough’s parcel viewer, shades in green the property where Ron and Deniece Isaacs were denied a permit for their marijuana business in 2016, and shades in blue the recreational property containing the softball fields that created a 500 foot buffer, measured in a straight line from the property boundary, which excluded the Isaacs’ shop. The odd shape of the buffered property prompted an unsucessful attempt by council member Bob Molloy to loosen city restrictions on proposed marijuana businesses more than 200 feet and across a road from properties that trigger setbacks. (map by Ben Boettger/Peninsula Clarion)

This map, taken from the Kenai Peninsula Borough’s parcel viewer, shades in green the property where Ron and Deniece Isaacs were denied a permit for their marijuana business in 2016, and shades in blue the recreational property containing the softball fields that created a 500 foot buffer, measured in a straight line from the property boundary, which excluded the Isaacs’ shop. The odd shape of the buffered property prompted an unsucessful attempt by council member Bob Molloy to loosen city restrictions on proposed marijuana businesses more than 200 feet and across a road from properties that trigger setbacks. (map by Ben Boettger/Peninsula Clarion)

Kenai Council rejects loosening marijuana setbacks

An effort to loosen city restrictions on where marijuana businesses can locate in Kenai — which critics say has pushed businesses from the town’s commercial center to outlying areas where they can conflict with residential neighbors — was voted down by Kenai’s seven-member city council on Wednesday night.

Council members Bob Molloy and Mike Boyle voted for the ordinance, which they’d also sponsored. The change would have measured the city’s 500 foot marijuana setbacks by pedestrian routes in certain cases, rather than the current straight-line measurement.

The rules Kenai passed in January 2016 allow cannabis businesses to open 500 feet — measured in a straight line from the buffered building’s entrance to the wall of the business — from churches, schools, recreational facilities and substance abuse treatment centers. State rules require the same distance, but measure differently: by the shortest pedestrian route between a marijuana business entrance and the buffered establishment’s property boundary. In the case of schools (for which Kenai doubled the state’s setback to 1000 feet) and recreation facilities, Kenai’s setback is measured from property line to property line.

Wednesday’s proposal — sponsored by council members Bob Molloy and Mike Boyle — would have left school setbacks unaltered, but changed the straight-line measurement in the specific case where a cannabis business over 200 feet from a buffered property also lies on the other side of a public right of way.

“After approximately one year, experience in administering the City’s (commercial marijuana) regulations indicate that amendments to the measurement methods of buffer distances are needed to avoid unintended application and allow for the reasonable location of Commercial Marijuana Establishments within the City consistent with state and local concern,” the text of Molloy and Boyle’s ordinance states.

The ordinance also contained a policy statement detailing how the pedestrian route would be determined. In an attached memo, Kenai City Attorney Scott Bloom wrote that the policy would be “similar in its most liberal application to methodology utilized by the state and other municipalities in Alaska including Anchorage.”

Kenai city planner Matt Kelley said that though he’s been asked for comprehensive maps of where marijuana business is and isn’t allowable in Kenai, the specifics of present regulation — knowing where a business’ planned walls will be or where a buffered building has its main entrance — require examination on a case-by-case basis.

For cannabis entrepreneurs Ron and Deniece Isaacs — who in August 2016 unsuccessfully appealed the Kenai planning and zoning commission’s rejection of a planned location for their cultivation and retail shop Majestic Gardens, raising the issue that prompted Wednesday’s ordinance — that specificity created a frustrating process. In June 2016, planning and zoning commissioners rejected a location in Swanson Square, approximately 455 feet north of the city-owned softball fields on Forest Drive — a recreational facility with a 500 foot setback. On its eastern side, the location was also about 438 feet from another property containing softball fields — though the closest ball field itself was roughly 1,323 feet away, across a woods and two streets.

The recreational property that triggered the eastern setback is a sprawling 33 acres which contains the four softball fields of the Kenai Park Strip, but also the woods on the other side of Coral Street, which lie east of Swanson Square. A strip of the property boundary crosses Coral Street to connect the two — a remnant, Molloy said, of the original survey that laid out property lines in Kenai before some present-day roads existed.

Council members upheld the planning and zoning decision in September 2016.

“The Isaacs argued that the ball fields themselves were over a thousand feet from their proposed business location, the lot containing the ball fields was very large and oddly shaped in such a manner to make application of a measurement to the edge of the parcel and not the ball fields themselves unfair,” the decision states. “The Isaacs further provided testimony and evidence that the City should adopt a method of measuring buffers based on pedestrian routes, like the State of Alaska, instead of a lineal measurement.”

The decision mentions the “unforeseen consequences” that Wednesday’s ordinance was meant to change.

“While not directly relevant to the outcome of this decision at this time, the Board notes that the unusual and particular size, shapes and roadway easements on the lots at issue in this case may lead to unforeseen consequences and encourages a review of the method of measurement of the City’s buffer distances that might provide for future changes to the City’s Code,” the decision states.

Deniece Isaacs said the couple knew the appeal would be unsuccessful, but they had made it to draw the council’s attention to the problems of siting a marijuana business in Kenai. She said she and her husband had worked with Molloy to initiate the change.

Though it was prompted by the problem the Issaacs were having with their permitting, Molloy said the ordinance “wasn’t intended specifically to benefit the Isaacs personally.”

“It was intended to address an issue the applicants generally might face because of our old property lot lines…” Molloy said. “It was intended to address that issue for the future.”

In June 2017 the Isaacs found a legal location for Majestic Gardens on the former property of Larry’s Club, a bar and restaurant on Kenai’s northwest side that burnt down in the early 1990s. Their state license for the business is pending.

On Wednesday Molloy moved to postpone a vote on the ordinance until the council’s Oct. 4 meeting, allowing Kenai’s planning and zoning commission an opportunity to introduce and discuss it in their two scheduled meetings prior to that date, potentially recommending changes. Molloy’s postponement and referral failed without a vote because no council member seconded it.

Regarding the Issacs’ right-of-way problem, Navarre said he’d prefer “if there was just an amendment to deal with that one issue, but to do a pedestrian walk could actually open up a lot more opportunities that currently aren’t there,” which he said would be unfair to marijuana investors who’ve already found locations.

Council member Jim Glendening agreed.

“I think it would be improvident now to change the ground rules after we’ve made representations, pronouncements, and thou-shalt-nots to people who have seriously considered investing in our community in the marijuana business, and I’d be reluctant to wholesale change any of the parameters described in our current marijuana ordinance,” Glendening said.

Deniece Isaacs, in a later interview, said that for similar reasons she and her husband no longer hoped for the ordinance to pass — though she “would support changes at a future date.” The Alaska Marijuana Control Board lists 12 license applications initiated or in progress for marijuana businesses with Kenai addresses, most for limited cultivation facilities. Future applicants may have a business advantage over present or pending ones if a greater range of locations are open to them, Isaacs said.

“That’s kind of where we were just being selfish,” she said. “But for the overall good of marijuana, for the peninsula as a whole, we’d have to say we’re for changing it. It’s just we’d hoped it would be a little slower in happening, to give (existing marijuana businesses) a chance to catch up on all that they’ve lost before other places start moving in… We just lost so much trying to get into other places, and now they’ve switched it, and we’re like, ‘oh if we’d just waited we wouldn’t have lost all that money.’” Deniece Isaacs said the couple spent about $10,000 scouting for a location.

Glendening also cited the “political overtones of the vote that’s going on in the borough right now” as a reason for his opposition. The Oct. 3 Kenai Peninsula Borough ballot will have the question of whether or not to ban commercial marijuana outside the incorporated cities. Depending on the outcome of that vote — and on the Soldotna city council’s Sept. 13 vote on whether to make their city’s present commercial cannabis ban permanent — Kenai may become the central peninsula’s only area for marijuana businesses.

The 2014 vote that legalized marijuana in Alaska narrowly failed in Kenai’s three voting precincts, with 1,022 votes against and 1,004 for. Council member Henry Knackstedt — though mistakenly saying Kenai’s vote had been a narrow yes — said Kenai’s present restrictions on marijuana business reflected the sentiment of the vote.

“In going with the pedestrian route, it would certainly liberalize the locations where marijuana establishments could be, which I thought would offset how the city voted before….” Knackstedt said. “It would be certainly in a lot more locations.”

Kenai Mayor Brian Gabriel said the pedestrian route measurement was “too interpretative,” noting that changes in pedestrian features such as road signals or crosswalks could change the legality of a business.

Reach Ben Boettger at ben.boettger@peninsulaclarion.com

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