POULSBO — As the City Council nears the end of reviewing the city’s new zoning code changes, it took on one of its toughest regulations Wednesday evening — medical cannabis collective gardens — and decided to remain silent.

After much discussion between the council and Planning Department staff, councilmembers seemed uncomfortable regulating an activity with federal law implications.

“I don’t want to have to be in a position to rule on two conflicting laws,” said Councilwoman Connie Lord, referring to state and federal law. All marijuana remains illegal under federal law.

Staff proposed collective gardens be zoned under Light Industrial, in an enclosed building. No production, processing or delivery of cannabis may be visible to the public, and no odor shall be detectible at adjacent properties, according to the draft code. Under state law, a collective garden may have up to 15 plants per patient, capped at 10, for a total of 45 plants. Collective gardens are not permitted within 500 feet of another collective garden, residential zoning district, public park, community center, elementary or secondary school (public or private), commercial child care business or youth oriented facility.

“It sounds like a petunia club has to go to a warehouse,” said Councilman David Musgrove, questioning the council’s overall policy on collective gardens in light of Initiative 502 (legalizing small amounts of recreational marijuana) and federal prohibition.

Planning Director Barry Berezowsky said the city is not obligated to address collective gardens in their zoning code, and he doesn’t believe it is a land use or zoning issue anyway.

“A plant is not a land use [issue],” Berezowsky said, but that any marijuana-related activity is a police issue.

“[We] only can control so much at the land use level. I’m not going to grill [a citizen] on what you’re growing in your backyard.”

The city’s moratorium on collective gardens expired in September. For now the city is not planning to offer collective garden permits. The code is still in draft stage, and the council has a few more workshops to finalize the code before adoption.

Marijuana activist Troy Barber testified in front of the council Wednesday, and agreed this was the safe route for the city until pending court cases can bring clarity to the state law. He had also submitted a letter to the council regarding the proposed regulation, stating the proposed criteria “will disenfranchise medical marijuana patients in Poulsbo and North Kitsap of availability to their medicine.

“By designating these gardens as ‘Light Industrial,’ with restrictions on par with ‘Adult Entertainment businesses,’ it would be difficult to impossible for such gardens to become established as allowed under state law, and put participants at further risk of federal investigation, arrest, and prosecution with more severe penalties.”

In their zoning workshop, the council also discussed square-footage limitation in two of the city’s commercial districts — 305 Corridor and Viking Avenue. Councilman Ed Stern was concerned limiting the square-footage of single stores would discourage development. Mayor Becky Erickson and planning staff pointed out that the city’s comprehensive plan policy encourages mixed use development in those districts, and larger retail stores are encouraged to be built in College Marketplace.

The draft zoning code states mid-size regional retailers can apply build a 50,000-square-feet or less store in the 305 Corridor and Viking Avenue; stores 50,001-square-feet or more can apply to develop in College Marketplace. The council agreed there should be more flexibility, and changed the square-footage cap to a 50,000-square-foot footprint — meaning the main level is capped in size, but encourages multistory retail stores.

The code also gives incentives for mixed use development plans, with retail on the main floor and apartments or condominiums above.

The draft and staff reports to the council can be found on the city’s website at www.cityofpoulsbo.com/planning/planning_codeam_2010.htm. The council will address the zoning code again at their Dec. 17 meeting.