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HomeMy WebLinkAboutStaff Report and Exhibits - 08.13.2014Planning Commission Exhibits – TXTP 7937 Marijuana LETTER EXHIBIT A Proof of Publication B Garfield County Land Use and Development Code C Garfield County Comprehensive Plan 2030, as amended D Application E Staff Report dated July 9, 2014 F Staff Presentation dated July 9, 2014 __________________________ _ Michael Bennett, Publisher Publisher Subscribed and sworn to before me, a notary public in and for the County of Garfield, State of Colorado this 06/02/2014. ________________________________ Pamela J. Schultz, Notary Public My Commission expires: November 1, 2015 Ad Name: 10222606A Customer: Garfield County Building Your account number is: 1008693 PROOF OF PUBLICATION THE RIFLE CITIZEN TELEGRAM STATE OF COLORADO, COUNTY OF GARFIELD I, Michael Bennett, do solemnly swear that I am Publisher of The Rifle Citizen Telegram, that the same weekly newspaper printed, in whole or in part and published in the County of Garfield, State of Colorado, and has a general circulation therein; that said newspaper has been published continuously and uninterruptedly in said County of Garfield for a period of more than fifty-two consecutive weeks next prior to the first publication of the annexed legal notice or advertisement; that said newspaper has been admitted to the United States mails as a periodical under the provisions of the Act of March 3, 1879, or any amendments thereof, and that said newspaper is a weekly newspaper duly qualified for publishing legal notices and advertisements within the meaning of the laws of the State of Colorado. That the annexed legal notice or advertisement was published in the regular and entire issue of every number of said weekly newspaper for the period of 1 consecutive insertions; and that the first publication of said notice was in the issue of said newspaper dated 5/29/2014 and that the last publication of said notice was dated 5/29/2014 the issue of said newspaper. In witness whereof, I have here unto set my hand this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ommunity Development Department 108 8th Street, Suite 401 Glenwood Springs, CO 81601 (970) 945-8212 www.garfield-county.com LAND USE CHANGE PERMIT APPLICATION FORM TYPE OF APPLICATION  Administrative Review  Development in 100-Year Floodplain  Limited Impact Review  Development in 100-Year Floodplain Variance  Major Impact Review  Code Text Amendment  Amendments to an Approved LUCP LIR MIR SUP  Rezoning Zone District PUD PUD Amendment  Minor Temporary Housing Facility  Administrative Interpretation  Vacation of a County Road/Public ROW  Appeal of Administrative Interpretation  Location and Extent Review  Areas and Activities of State Interest  Comprehensive Plan Amendment Major Minor  Accommodation Pursuant to Fair Housing Act  Pipeline Development  Variance  Time Extension (also check type of original application) INVOLVED PARTIES Owner/Applicant Name: ________________________________________________ Phone: (______)_________________ Mailing Address: ______________________________________________________________________ City: _______________________________________ State: _______ Zip Code: ____________________ E-mail:_______________________________________________________________________________ Representative (Authorization Required) Name: ________________________________________________ Phone: (______)_________________ Mailing Address: ______________________________________________________________________ City: _______________________________________ State: _______ Zip Code: ____________________ E-mail:_______________________________________________________________________________ PROJECT NAME AND LOCATION Project Name: _____________________________________________________________________________________ Assessor’s Parcel Number: ___ ___ ___ ___ - ___ ___ ___ - ___ ___ - ___ ___ ___ Physical/Street Address: ________________________________________________________________ Legal Description: ______________________________________________________________________ _____________________________________________________________________________________ Zone District: ___________________________________ Property Size (acres): __________________ PROJECT DESCRIPTION Existing Use: __________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ Proposed Use (From Use Table 3-403): _____________________________________________________ Description of Project: __________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ REQUEST FOR WAIVERS Submission Requirements  The Applicant requesting a Waiver of Submission Requirements per Section 4-202. List: Section: ______________________________ Section: _________________________________ Section: ______________________________ Section: _________________________________ Waiver of Standards  The Applicant is requesting a Waiver of Standards per Section 4-118. List: Section: ______________________________ Section: _________________________________ Section: ______________________________ Section: _________________________________ I have read the statements above and have provided the required attached information which is correct and accurate to the best of my knowledge. ______________________________________________________ __________________________ Signature of Property Owner Date OFFICIAL USE ONLY File Number: __ __ __ __ - __ __ __ __ Fee Paid: $_____________________________ PROJECT INFORMATION TYPE OF REVIEW: Text Amendment to the Garfield County Land Use and Development Code Recreational Marijuana, Medical Marijuana, Storage and Caregivers FILE NUMBER: TXTP 7937 APPLICANT: Board of County Commissioners/Community Development Director DATE: July 9, 2014 I. PROPOSAL DESCRIPTION MARIJUANA, CAREGIVER According to Amendment 20, codified in Article XVIII of the Colorado Constitution, Section 14, Medical Use of Marijuana for Persons Suffering from Debilitating Medical Conditions, a Primary Care-Giver (“Caregiver”) is defined as “a person, other than the patient and the patient's physician, who is eighteen years of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition.” The Colorado Department of Public Health and Environment restricts Caregivers to 5 patients unless a Caregiver’s Patient Limit Waiver is applied for and approved. Each patient may have 6 plants each (3 flowering, 3 in the vegetative state). Without a waiver, a Caregiver can have up to 30 plants. With a waiver of the patient cap the Caregiver can have additional patients (thus additional plants). In addition, there are doctors who will “prescribe” additional plants for a particular patient stating “patient x must have 30 plants for her debilitating pain.” In some known cases, the Caregiver’s growing has exceeded 100 plants. The County’s current code (Section 7-903) regulates Optional Premise Cultivation Operation (“OPCO”), but not Caregiver facilities. This Section states, it “will not be construed to apply to the private cultivation of Medical Marijuana by a registered patient or primary caregiver as defined in Article XVIII, Section 14, of the Colorado Constitution.” This means that Caregivers (regardless of plant count) are not currently regulated through either Garfield County’s local land use or building regulations. The Building and Planning Division have found this to be a potential issue, especially in regard to the structure in which the Caregiver operation takes place. The Building Division has indicated that there are potential significant structural, ventilation, humidity and electrical issues with larger scale Caregiver operations. MARIJUANA, RECREATIONAL USE According to Amendment 64, codified in the Colorado Constitution Article XVIII, Section 16, Personal Use and Regulation of Marijuana, an individual has a right to grow up to 6 plants (3 flowering, 3 in the vegetative state), as well as to grow the same amount for one other individual, for a total of 12 plants. The County’s land use code is silent on the growing of recreational marijuana for personal use (commercial production was prohibited by Ordinance 2013-02) and, strictly interpreted, means it is currently prohibited. The CAO believes the County should promulgate regulations for the growing for personal use to be consistent with the State Constitution. STORAGE The County’s definition for an OPCO does not currently contemplate “storage” as being a part of the use. The State has recently provided guidance on Storage and will review both storage on-site (in a permitted OPCO) and off-site (at a separate facility) under the State’s OPCO regulations. The CAO recommends being consistent with the State and including “storage” within the County’s existing OPCO definition. RECOMMENDATION The CAO as well as the Planning Manager, concur that the Land Use and Development Code (“LUDC”) should be more consistent with the State Constitution, as well as provide for clear thresholds for larger Caregiver Operations to comply with adopted Building Codes to ensure the public health and safety issues are properly addressed in a building permit process. The CAO and Planning Manager recommend amending the LUDC to add the following provisions as provided in red text: Definitions. If Caregiver and recreational use are to be included in the LUDC, definitions must be added. The recommended definitions are from Amendment 64 and Amendment 20. Marijuana. All parts of the plant of the genus cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including marihuana concentrate. "Marijuana" or "marihuana" does not include industrial hemp, nor does it include fiber produced from the stalks, oil, or cake made from the seeds of the plant, sterilized seed of the plant which is incapable of germination, or the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product. Marijuana, Personal Use. Notwithstanding any other provision of law, the following acts are not unlawful and shall not be an offense under Colorado law or the law of any locality within Colorado or be a basis for seizure or forfeiture of assets under Colorado law for persons twenty- one years of age or older: a. Possessing, using, displaying, purchasing, or transporting marijuana accessories or one ounce or less of marijuana. b. Possessing, growing, processing, or transporting no more than six marijuana plants, with three or fewer being mature, flowering plants, and possession of the marijuana produced by the plants on the premises where the plants were grown, provided that the growing takes place in an enclosed, locked space, is not conducted openly or publicly, and is not made available for sale. c. Transfer of one ounce or less of marijuana without remuneration to a person who is twenty-one years of age or older. d. Consumption of marijuana, provided that nothing in this section shall permit consumption that is conducted openly and publicly or in a manner that endangers others. e. Assisting one other person who is twenty-one years of age or older in any of the acts described in paragraphs (a) through (d) of this subsection. Marijuana, Medical Use. The acquisition, possession, production, use, or transportation of marijuana or paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient's debilitating medical condition, which may be authorized only after a diagnosis of the patient's debilitating medical condition by a physician or physicians, as provided by this section. Marijuana, Caregiver. "Primary care-giver" means a person, other than the patient and the patient's physician, who is eighteen years of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition. Colo. Const. Art. XVIII, Sec. 14 (f). Optional Premises Cultivation Operation (OPCO). An entity or facility A person who has been issued a Medical Marijuana Center and/or infused product manufacturing license pursuant to the Colorado Medical Marijuana Code, and who is licensed or seeking licensing to grow, or cultivate, or store Medical Marijuana at a premises for the purpose of supplying its associated licensed center or infused product manufacturer. Manufacturing of Marijuana-infused products and retail sales of Medical Marijuana are expressly prohibited in unincorporated Garfield County, including at an Optional Premises Cultivation Operation. The term “Optional Premises Cultivation Operation” does not apply to the private cultivation of Medical Marijuana by a registered patient or primary Caregiver who is growing an amount medically necessary to address a debilitating medical condition as set forth in Section 14(4) of Article XVIII of the Colorado Constitution. Standards. In order to clarify the provisions and regulations that pertain to these specific types of grows, the following standards are recommended to be added to Section 7-1202. a. Marijuana, Medical Use. i. Any person growing marijuana for their own medical use shall comply with the County land use code and the adopted Building Code. ii. Any person growing marijuana for their own medical use shall comply with Amendment 20, Article XVIII, § 14 of the Colorado Constitution. iii. Any person growing marijuana for their own medical use shall grow it in an enclosed locked space (a space with walls, a roof and doors), not viewable by the public. iv. The individual growing for their own medical use is restricted to growing 6 plants (3 mature or flowering, 3 immature). b. Marijuana, Caregiver i. Any person growing marijuana for their patients’ medical use shall comply with the County land use code and the adopted Building Code. ii. Any person growing marijuana for their patients’ medical use shall comply with Amendment 20, Article XVIII, § 14 of the Colorado Constitution. iii. Any person growing marijuana for their patients’ use shall grow it in an enclosed locked space (a space with walls, a roof and doors), not viewable by the public. iv. The Caregiver is restricted to 5 patients with 6 plants (3 mature or flowering, 3 immature) each, per patient, for a maximum of 30 plants unless they have applied for and been granted a waiver of the Caregiver’s patient limit. v. Any enclosed space with a Caregiver operation that contains 13 or more plants shall be required to seek a building permit and comply with the adopted Building Code. c. Marijuana, Personal Use. i. Any person growing marijuana for their own personal use shall comply with the County land use code and the adopted Building Code. ii. Any person growing marijuana for their own personal use shall comply with Amendment 20, Article XVIII, § 16 of the Colorado Constitution. iii. Any person growing marijuana for their own personal use shall grow it in an enclosed locked space (a space with walls, a roof and doors), not viewable by the public. iv. The individual growing for their own personal use is restricted to growing 6 plants (3 mature or flowering, 3 immature) for themselves as well as 6 plants for one other person on the same property for a maximum of 12 plants. v. There must not be renumeration. Uses. In order to provide additional clarity about what types of grow operations are allowed within the County for Caregivers and Personal Use, it is recommended that the Use Table 3-403 is modified to reflect this type of accessory use. IV. STAFF ANALYSIS – LUDC CRITERIA FOR A TEXT AMENDMENT Section 4-114 outlines the procedures and criteria for consideration of a Land Use Code Text Amendment request to the LUDC. The criteria for approval of a Land Use Code Text Amendment are as follows: 1. The proposed text amendment is in compliance with any applicable intergovernmental agreements; and There are no intergovernmental agreements impacted by the proposed text amendment. 2. The proposed text amendment does not conflict with State law. This proposed text amendment would make the County’s Land Use Code more consistent with the Colorado Constitution Article XVIII, Section 14 Medical Marijuana Use for Persons Suffering from Debilitating Medical Conditions as well as Article XVIII, Section 16 Personal Use and Regulation of Marijuana. V. STAFF RECOMMENDATION Staff recommends that the Planning Commission consider recommending approval of the text amendments as outlined in this staff report. Staff believes that the text amendment as proposed brings consistency between the Garfield County Land Use and Development Code and the State Constitution as well as addresses building life, safety and health issues for larger grow operations.