Applicant withdraws permit request, packs up after felony indictment

by: SPOTLIGHT PHOTO: MARK MILLER - This commercial property at 1271 Columbia Boulevard in St. Helens, next to city fire and police stations, will no longer host a medical marijuana growing facility. After applicant David Mighell was reportedly indicted on drug charges stemming from what St. Helens police say were violations of Oregons medical marijuana law, he withdrew his request for a conditional use permit to operate the nursery.A Portland man whose application for a conditional use permit to allow him to operate a medical marijuana nursery in St. Helens has been a recent source of controversy withdrew that application this week.

Although the St. Helens Planning Commission unanimously voted to approve the permit sought by David Mighell in August, the decision was appealed by Columbia River Fire and Rescue, the St. Helens Police Department and the St. Helens School District.

On Wednesday, Oct. 9, Mighell told city planning administrator Jacob Graichen that he was withdrawing his application.

“St. Helens is an unhappy place, and I don’t want to be there,” Mighell said in a brief interview with the Spotlight Wednesday.

Mighell faces charges over his operation of the medical marijuana nursery at 1271 Columbia Boulevard, according to St. Helens Police Chief Terry Moss. Deputy District Attorney Dale Anderson, who is handling the case, said his arraignment is set for Oct. 21.

Moss said when officers inspected the nursery last month, they found — and confiscated — immature marijuana plants “much larger” than what state law allows.

“We recently conducted an inspection of his facility and found him to be outside of the provisions afforded by medical marijuana law, and the [district attorney’s] office and the grand jury met and decided to indict Mr. Mighell on the charges of possession of a controlled substance and manufacture of a controlled substance,” Moss said.

Moss said because Mighell’s plants were deemed out of compliance with state law, he was exposed to felony charges.

Mighell declined to comment on his indictment.

The nursery was located on the same block as fire and police stations, and just up the road from both Lewis and Clark Elementary School and St. Helens Middle School. It was set up as a cooperative between four medical marijuana users, allowing them to grow their own marijuana. Fire Chief Jay Tappan said the nursery has been “cleaned out” and is now vacant.

City mulls marijuana laws

News of the withdrawal of the application came the morning after a lengthy Planning Commission discussion on marijuana in St. Helens.

In a Sept. 24 memo that precipitated the debate at Tuesday’s commission meeting, Graichen noted the recent passage of House Bill 3460, a law requiring the Oregon Health Authority to license and regulate medical marijuana dispensaries, and discussed the history of marijuana grow operations in Columbia County and St. Helens, the county seat. But he also noted that marijuana is considered an illegal drug under federal law.

“Since Marijuana is still a Class I substance in the Federal Controlled Substances Act that could be a strategy for a city to prevent such business, provided there is the political will to do so,” Graichen wrote, underlining the last clause for emphasis.

But Graichen concluded, “My concern at this point is if the city does spend time, money and effort to draft new law related to marijuana business or land use, that it could soon be antiquated ... If trends continue across the country, we could see marijuana outright legal in Oregon as it is in Washington and Colorado. It may be wise to draft law that deals with [the] current issue and anticipates widespread legality.”

Graichen’s memo reflected tension between state and federal law as it concerns marijuana. Federal law prohibits marijuana, though it is legal or tolerated under certain conditions in parts of the country — including Oregon, where medical marijuana is legal. There additionally, however, appears to be a national trend toward legalization of the plant. Voters in Washington and Colorado legalized marijuana last November.

Considering prohibition

Planning Commission Chairman Al Petersen said he believes that if St. Helens were to cite federal law to declare it will not allow marijuana within city limits, the state could not stop it.

“They could sue our a - - all ways from Sunday, and they would lose,” Petersen said.

Since HB 3460 prohibits medical marijuana dispensaries within 1,000 feet of a school or residential zone, Graichen said that, by his reckoning, there is only one small area in south St. Helens where a dispensary could operate.

But Vice Chairman Dan Cary suggested the city should go further than state law and effectively rule out any dispensary inside city limits.

“I think a lot of the city doesn’t want to see St. Helens as the bud capital of the world,” said Cary. “I think we would be supported if we were to outright ban it, if we wanted to.”

Petersen disagreed, saying he was surprised to find HB 3460 is as restrictive as it is. He suggested the commission should hold off on proposing code changes over marijuana, which Commissioner Kathryn Lawrence echoed.

“I expect it to come up again someday, but I don’t want to take it any further today,” said Lawrence.

Cary asked Graichen to look into options the commission might have to place additional restrictions on medical marijuana dispensaries and report back at the next meeting.

The city council was set to consider the appeal of the Planning Commission’s permit decision Wednesday, Oct. 16. Graichen and Tappan said that appeal has been preempted by Mighell’s withdrawal.

Graichen said the permit decision was a specific land use issue and the withdrawal will not affect city code.

“This is not a legislative act that would change law, other than it gives the city something to think about as marijuana law evolves,” said Graichen.

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