Council says no to CBD in downtown
Unanimous vote halts plans for Cedarburg dispensary

By Laurie Arendt

June 13, 2019

 City Planner Jon Censky tells the Common Council – and a packed room – that permits aren’t granted until after inspection.
Photo by Laurie Arendt

CEDARBURG — Following the recommendation from Cedarburg’s Plan Commission, the Cedarburg Common Council unanimously voted not to change the city’s existing zoning code to allow CBD dispensaries in the downtown B-3 Central Business District.

“This is our historic district, this is where we protect it, not engage in experiments,” said Council member Garan Chivinski after nearly two hours of public comment on Monday night. “I have a responsibility to that historic district; it is our bread and butter, it is our heart.”

Though the council chambers were filled with a large contingent of supporters who backed Erth Dispensary’s plan to open a location in downtown Cedarburg, public comment was split about equally during the hearing, which also included comments from Erth Dispensary owner Jennifer Kawczynski and her attorney, Jeff Cormell.

“If she opened a store and sold hemp clothing by Patagonia and happened to have an end cap with CBD on it, she’d be OK,” Cormell told the council. “This is becoming pretty arbitrary here, and when something is being determined in an arbitrary fashion, it’s called discrimination.”

Kawczynski said she had been transparent about her intentions from the start, and had initially received a completely different message from the city than she was now receiving.

“On March 8, I actually received a receipt that, on the top, said ‘Occupancy Permit,’ and a handwritten Post-it that said, ‘Call me when you are ready to open,’” she said, noting that she had no indication that there was an issue at that point based on the response she received after mailing in her application.

City Planner Jon Censky explained that the city does not issue an occupancy permit until after the building inspector and the fire inspector visit the site, and because neither has been in the building, no occupancy permit was ever issued for her intended location at W61N510 Washington Ave.

“I have no idea what activity has taken place in her building,” Censky said.

The matter was first brought before the city’s Plan Commission in early May as a request to change the existing city code to allow CBD dispensaries as either permitted or conditional uses. Prior to the vote that recommended the request be denied, commissioners discussed the possibility of changing the existing code to allow CBD dispensaries in the B-2 commercial district, which primarily comprises the south commercial district of Cedarburg and other small pockets in the city. Based on that discussion, the city is now considering a change to the B-2 district zoning.

“While I am grateful that change is being considered, it’s not what we’re interested in,” said Kawczynski, who has signed a lease for the building downtown.

Supporters of her request noted that CBD, which is short for cannabidiol, a substance derived from hemp, was not the product that many are making it out to be.

“Someone once referred to it as ‘diet marijuana,’” said State Sen. Lena Taylor (DMilwaukee), who spoke on behalf of approving the request and gave the Council both an update on state legislative work on hemp as well as bottles of CBDinfused soda. “And in a way that’s right: there’s no sugar in diet soda and there’s little to no THC in CBD products.”

Tetrahydrocannabinol or THC is the active ingredient in marijuana, and is illegal in Wisconsin.

“Someone can lay in a field and smoke hemp all day and they won’t get high,” Taylor said. “They may get a headache or something, but they definitely won’t get high.”

However, Council members remained concerned by how intertwined CBD and marijuana remain in the public’s mind.

Council member Rod Galbraith cited the fact that some residents saw Kawczynski’s “opening soon sign,” which included what many perceived as a marijuana leaves. He also noted her intended opening date of 4/20 and the fact that her mother was referred to as Grandma Bud in the media.

Kawczynski said that the leaf on the sign is the same in their company logo, and it is a hemp bud.

“That is my mother’s nickname,” she said. “And all of our employees are referred to as ‘budtenders,’ but these are all in reference to hemp, not marijuana. 4/20 is a national cannabis holiday.”

Council members were still not convinced of its appropriateness in Cedarburg’s downtown historic district.

“Part of me says let’s let economics do its thing, but it’s not an area to experiment with,” said Council Member Sherry Bublitz. “People move to this area so they have a little piece of nirvana, and part of that little piece of nirvana is our downtown.”

The Council also discussed the fact that while Kawczynski has been transparent about her intent and had supplied a list of products she would be selling, as well as discussion of what items sold in her Bay View store that would not be available in Cedarburg, any decision made would not just apply to her store but to any other CBD dispensaries interested in opening in the B-3 district.

“The applicant doesn’t want to open a head shop, but can we prevent that from happening (with others)?” asked Council member Jack Arnett. “Zoning can be a pretty big hammer when sometimes all we need is a scalpel. She runs a pretty decent operation, but there could be other people who come in after her, and they would have the right to come in.”

Ultimately, the Common Council unanimously agreed not to change the ordinance for the B-3 district, but the discussion regarding a change to the B2 district is still under consideration and will be addressed at a later date.

City still considering CBD for B-2 district
By Laurie Arendt

CEDARBURG — Though the Cedarburg Common Council declined to allow CBD dispensaries in its Central Business District at Monday night’s meeting, the city is still working on a draft ordinance that could offer an opportunity for CBD dispensaries to operate in Cedarburg.

At last week’s Plan Commission meeting, commissioners discussed a proposed ordinance that would allow CBD dispensaries in the city’s B-2 district. This zoning is primarily found in the city’s south business district along Washington Avenue but there are also limited pockets of it elsewhere within the city limits.

The proposed ordinance has not been approved and, in its draft form, contains restrictive language and parameters for operators, including the prohibition of:

■ Coil-based CBD vaping products.

■ Pet food containing CBD.

■ Dried cannabis flower buds.

■ Food products containing CBD, unless they become approved by the Food and Drug Administration.

■ Paraphernalia associated with the smoke inhalation of the dried hemp flower.

The ordinance would also require a dispensary to provide up to four samples of products, up to four times a year, for independent, third-party testing. These products would be selected by the Cedarburg Police Department.

Additionally, sales to children under the age of 18 would be prohibited.

The ordinance also attempts to define a CBD dispensary as one “where more than 50 percent of the product sales or services are from or include products containing or purporting to contain CBD and/or CBD related products.”

At the Plan Commission discussion last week, City Attorney Mike Herbrand explained that Cedarburg is one of the few municipalities attempting to codify the presence of CBD dispensaries.

“We are really on the front edge of this product and what might be coming,” he told the Plan Commission. “Before you is a template. … our code is old and some of the things on it are also antiquated. There is a viable option, and perhaps that is to remove general definitions and replace with something more specific.”

This was part of the argument used by Erth Dispensary’s attorney at a previous meeting. He believed that the business could fall into some of the existing categories currently allowed in the city’s B-3 Central Business District zoning, such as “variety store.”

Commissioners noted that there are certain nuances to what they felt was an appropriate business for the downtown district, even among existing and other businesses.

“There’s big difference between a tasting room and a discount liquor store,” said Commissioner Kip Kinzel as an example. “Or a vape shop vs. a Uhle’s (smoking lounge). But how do we differentiate that?”

“But if we do this, we might end up with significant restrictions,” said Commissioner Pat Thome.

That was also a point Jennifer Kawczynski, owner of Erth Dispensary, made at the Common Council meeting Monday night. While she made it clear that she was not interested in opening her business in the city’s B-2 district, she did offer some constructive input to the city.

“It’s so restrictive,” she noted. “Any business trying to open with these specific restrictions is going to have problems. You already have stores downtown that sell some of these products.”

While the proposed ordinance remained at the draft stage and no recommendation was taken by the Plan Commission this month, the discussion is expected to continue.