Following the Zoning Board of Appeals' (ZBA) lengthy April 4 review and action on an appeal, which sought to potentially allow a medical marijuana dispensary in an industrial building on Commerce Road, the zoning enforcement officer's recent decision that rejected such a use remains in effect.

In March, a firm known as 18 Commerce Road, LLC, sought town zoning approval to potentially allow such a dispensary to operate in a partially vacant building at that address, but Town Planning Director George Benson, serving as the zoning enforcement officer, on March 20 turned down that request, stating that the town zoning regulations do not permit such a use.

The firm then appealed the decision to the ZBA because a potential tenant of the building was interested in operating a dispensary there. The 10,240-square-foot building was built in 1978. It is located in a M-5 (Industrial) zone.

Besides a town endorsement to allow a dispensary, such a facility would require approvals from the state's medical marijuana program, which is administered and licensed by the state Department of Consumer Protection (DCP). The DCP has extensive regulations to control the production, handling, and sale of medical marijuana to people who meet the medical requirements to use the substance.

ZBA members discussed at length the appeal, considering the semantic aspects of the term "retail use" in seeking to determine whether the zoning regulations would allow a dispensary.

Mr Benson said that because the zoning regulations do not specifically allow a medical marijuana dispensary as a permitted use, such a use is, in effect, prohibited.

Attorney Robert Hall, representing 18 Commerce Road, LLC, however, argued that such a use falls under the broad category of "retail use" as listed in the regulations, and thus is allowable.

ZBA members considered both viewpoints at length. Their review did not involve the merits of medical marijuana, but whether the zoning regulations would technically allow a dispensary in town for medical marijuana sales to patients who meet applicable state regulations.

ZBA members took two votes on the firm's appeal, which alleged that the zoning enforcement officer had erred in his March 20 decision.

In the second and more definitive action, ZBA members voted on a motion to override the zoning enforcement officer's decision.

That motion drew a 3-2 vote, with ZBA members Jane Sharpe, Barbara O'Connor, and Ross Carley voting in favor of the motion, and Chairman Alan Clavette and Prerna Rao opposed.

However, after that vote, ZBA members consulted applicable state law on the operations of Zoning Boards of Appeal and learned that the motion had actually failed to pass because such a motion requires at least four affirmative votes to succeed.

In effect, the ZBA had reached a simple majority to approve the motion, but a super majority is required to pass such a motion.

Thus, Mr Benson's decision against allowing a dispensary remains in effect.

A ZBA decision on an application may be appealed to the Connecticut Superior Court. Also, the applicant has the option of applying to the Planning and Zoning Commission (P&Z) to create new zoning regulations which, if approved by the P&Z, would specifically allow a medical marijuana dispensary as a permitted use.

In 2013, the state legislature approved the use of medical marijuana by prescription by patients who qualify under a set of legal/pharmacological rules.

In this area, a medical marijuana dispensary does business on Garella Road in Bethel.