HomeMy WebLinkAbout3.0 Staff Report BOCC 11.07.16Land Use and Development Code Text Amendment
Board of County Commissioners - Staff Report Exhibits
Applicant is the Garfield County Board of County Commissioners
November 7,2016
(File TXTP-O7 -1 6-847 3)
Exhibit
Number
Exhibit Description
1 Public Hearinq Notice lnformation
2 Proof of Publication
3 Garfield County Land Use and Development Code, as amended
4 Garfield Countv Comprehensive Plan of 2030
5 Aoolication
6 Staff Report
7 Referral Comments from the Town of Parachute, dated August 16,
2016
8 Referral Comments from Colorado River Fire Rescue, dated
September 6, 2016
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TYPE OF REVIEW:Text Amendment to the Garfield County Land Use and Development Code
Marijuana Grow Operations in Garfield County - Regulation of Marijuana
Personal Use, Medical Use, and Caregivers in Garfield County
TXTP-O7-L6-8473
Board of County Commissioners
November 7 ,201-6 - Board of County Commissioners
FILE NUMBER:
APPLICANT:
DATE:
I. PROPOSAL DESCRIPTION
BOARD OF COUNW COMMISSIONERS DIRECTION
On July 18,20L5, the Community Development Department held a Public Meeting with the Board of
County Commissioners (Board) concerning the proliferation of marijuana grow operations in Garfield
County as a result of legal personal use, medical use and caregiver grows authorized by Amendment 54
of the Colorado Constitution. At this Meeting, the Board directed Staff to begin to process a Text
Amendment to the Land Use and Development Code of 201,3, as amended (LUDC) with the Board as the
Applicant to codify Standards for Marijuana Personal Use, Medical Use, and Caregivers within Garfield
County. These Standards are to address nuisance, health and safety issues related an individual's rights to
grow marijuana for personal and medical use under the State Constitution.
BACKGROUND
Since the passage of Amendment 20 and Amendment 54, Garfield County has seen and experienced a
proliferation of personal marijuana grow operations. Many of these grow-ops are inside residential homes
but many are also large scale outdoor grow operations and greenhouses.
Currently under the County's land use regulations, the County only has the ability to regulate the grow
operations related to Operation Premise Cultivation Operations ("OPCOs"), as defined by the County's
Land Use and Development Code. The County's current code (Section 7-903) regulates OPCOs, but not
Caregiver facilities or personal grows. 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 XVlll,
Section 14, of the Colorado Constitution." Simply put, this means that medical marijuana growers,
caregivers, and recreational growers are not currently regulated through Garfield County's local land use
regulations. Since most greenhouse structures are considered exempt from the County's adopted Building
Code, these types of growing facilities are also not subject to the County's building code provisions and
associated perm itting.
The State Department of Public Health and Environment, and law enforcement agencies are tasked with
enforcing state laws, rules, and regulations governing personal medical and recreational marijuana.
However, since the legalization of marijuana the County has learned that these agencies have little to no
ability to control the growing of personal marijuana because of the various nuances in the law. For
instance, Article XVlll, Section L4 of the Colorado Constitution authorizes medical marijuana patients to
possess no more than six plants and no more than two ounces of marijuana, however if medically
llPage
necessary, a patient may possess more than 6 plants. There are medical marijuana patients in Garfield
County with extended plant count prescriptions of 99 plants. Unlike recreational marijuana, growing of
medical marijuana is not limited to enclosed, locked space. Therefore and for example, two medical
marijuana users each with medical cards for 99 plants, living in the same household, may legally grow 198
plants outdoors. Amendment 20 specifically provides that a person shall not grow marijuana plants in
public, however there is no sanction or penalty written into the law for growing plants within view of the
public, thus no way to enforce against persons who grow in public. lf a patient violates any of the
provisions of the medical marijuana laws, such patient is subject to criminal charges, and CDPHE may
revoke the patient's medical marijuana card for a period of one-year.
MEDICAL - Medical marijuana patients may designate a primary caregiver, and a primary patient's
caregiver may grow for up to 5 patients, unless they obtain a waiver from the state to grow for more.
There are currently L7 people in Colorado who have a waiver to grow for more than 5 patients. Statutes
require caregivers to register with CDPHE, provide their location, and keep copies of their patient's
medical marijuana cards, however there are no criminal or other sanctions written into the law to punish
those caregivers who failto either register with CDPHE or provide their location. A caregiver may however
be charged under the criminal statutes if they possess more plants than allowed under the law. For
instance if a caregiver has the maximum of five patients, each authorized to have 6 medical plants, the
caregiver may be charged with a crime if they possess more than 30 plants. A caregiver may live with
other caregivers, thus it is possible for multiple caregivers to live in the same home and each grow up to
30 marijuana plants per person without a waiver from CDPHE.
RECREATIONAL / PERSONAL - With respect to recreational marijuana, Article XVlll, Section 15, authorizes
individuals to possess and grow six plants of marijuana for recreational use, and to further assist another
person 21 years or older in growing marijuana. The Colorado Attorney General's Office opined that the
language "assisting another person" means a person can assist an unlimited number of individuals, not
just one person. Therefore, an individual can grow up to six plants each for an unlimited number of other
individuals so long as each additional individual is a resident of Colorado and is over the age of 2L. Under
the current law, recreational marijuana must be grown in an enclosed locked space, not viewable by the
public. Without zoning regulations, individuals can legally grow hundreds of plants in enclosed, locked
space in Garfield County. No state agency has authority to enforce rules applicable to recreational
marijuana growers and as a result, enforcement has fallen to local governments.
ln the case of both medical and recreational marijuana, individuals exceeding legal plant counts are
subject to criminal penalties; however, as evidenced in the above discussion, there are a variety of
defenses available to both medical and recreational marijuana growers with large plant counts, and it is
likely the person charged can present a defense to the crime.
The County continues to receive frequent complaints regarding grow operations, ranging from those in
residential areas that are growing within traditional single family homes to those growers with large open
air grows and large greenhouses in the County's rural areas. Because these personal grow operations are
legal, law enforcement can take no action. The Community Development Department has significant
concerns with the size and scale of grow operations, especially as they relate to potential issues regarding
health, nuisance, and building safety. Among these concerns are the safety issues such as the growth of
mold due to inadequate ventilation, accessibility to children and wildlife, impacts on land values, noxious
odors, structural issues, electrical issues associated with inadequate electrical wiring of larger enclosed
personal grow operations, illegal use of water, and storage of chemicals and waste disposal.
2lPage
PERSONAL USE MARTJUANA (AKA RECREATIONAL)
According to Amendment 64, codified in the Colorado Constitution Article XVlll, Section 1"6,
Personal Use and Regulation of Marijuana, an individual has a right to grow up to 6 plants (3
flowering, 3 in the vegetative state). Amendment 64 further allows an individual over the age of
21 to assist another Colorado residents over the age of 21 in growing up to six plants.
The County's land use code is silent on the growing of recreational marijuana. Because the
Colorado Attorney General's Office has interpreted the language "assisting another" to include
more than just one additional person, and there have been no further amendments to this
language or contrary case law, it is possible for an individual to legally grow an unlimited number
of recreational marijuana plants as long as those plants are for the purpose of "assisting another"
person. This has resulted, we believe, in recreationalgrow operations serving more than just two
people, sometimes in a cooperative scenario, and therefore having the propensity to become
quite large in scale.
MEDICAT MARIJUANA CAREGIVER
According to Amendment 20, codified in Article XVlll 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. ln addition,
there are doctors who will "prescribe" additional plants for a particular patient stating "patientx
must have 30 plants for her debilitating pain." ln some known cases, the Caregiver's grow has
easily exceeded 100 plants.
The County's land use code is silent on the growing of medical marijuana. We are now aware that
patients frequently have medical cards authorizing them to have far in excess of 6 plants.
Therefore, the County is seeing large scale medical marijuana open air grows in the County that
claim to be caregiver facilities.
II. STAFF ANATYSIS - LUDC CRITERIA FOR ATEXT AMENDMENT
Section 4-L14 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.
3lPage
Following review by the County Attorney's Office, it is Staff's opinion that the proposed text
amendments do not conflict with State law.
III. REFERRAL COMMENTS
Public Notice has been accomplished as required by the LUDC. No public comments were received as a
result of the public notice. Referral Comments received on the Application are attached as Exhibits and
summarized below:
- Town of Parachute - Stuart McArthur, Town Manaeer (Exhibit 7): States that the Town supports
the proposed changes to the County regulations regarding limitations on the size and plant count
of personal, medical and caregiver marijuana cultivation.
- Colorado River Fire Rescue - Orrin D. Moon, Actine Division Chief/Fire Marshal (Exhibit 8):
Expressed support for the amendments and requested that the County Code Enforcement Officer
keep the Fire District informed of any known non-commercial grow operations.
No comments were received from the following referral agencies: Garfield County Sheriff, Garfield County
Environmental Health, Garfield County Emergency Management, Garfield County Public Health, the
Colorado Division of Local Government, the Town of Carbondale, the City of Glenwood Springs, the Town
of New Castle, the Town of Silt, the City of Rifle, the Carbondale and Rural Fire Protection District, the
DeBeque Fire Department, the Glenwood Springs Rural Fire Protection District, and the Gypsum Fire
Protection District.
IV. OPTIONS FOR REGUTATION
ln response to size, scale, safety, nuisance (odor) and health-related issues, numerous jurisdictions across
the State adopted regulations in their land use code to limit the growing of personal and medical
marijuana. Many jurisdictions (ie. Jefferson County, City and County of Denver, Eagle County, Huerfano
County amongst others) have adopted plant count caps, whereby they limit the number of marijuana
plants that can be grown on a single property. Other jurisdictions (eg. Boulder County and Park County)
have taken the approach of limiting the area in which one can grow which has the effect of ensuring grow
operations are smaller in scale and thus do not generally have the elevated concerns for building safety
and other health and nuisance related issues. ln 2014, Staff brought an option of regulating grow
operations through a plant count proposal. Should the Board want to consider new land use regulations,
either plant counts or limitation on grow area may be an effective means for regulating this use.
V. PIANNING COMMISSION RECOMMENDATION
On September L4, 2016, the Planning Commissioner made a unanimous (7-0) recommendation of
approval for this text amendment application as proposed by Staff.
VI. RECOMMENDATION
4lPage
The Community Development Department suggests the following approach for regulations that we think
may be successful in addressing the size, scale and location issues related to grow operations. First, staff
recommends several definitions be added to the LUDC that clearly define terms used within the
languageoftheregulations. ThesetermsareconsistentwiththetermsusedintheStateConstitution.
Staff further recommends that the definition of "Agriculture" be amended so that marijuana is excluded
as an agricultural product. The definitions should be amended as follows:
Agriculture. The use of land for production, cultivation, growing and harvesting of crops and
plants; raising and breeding livestock, commercialanimalfeed lot operations; harvesting, storage,
grading, packaging, processing, and distribution of agricultural commodities; construction of
internal roads, ponds, dams and ditches necessary to agricultural operations, excepting those
regulated as Water lmpoundment; dairying, aquaculture, horticulture, floriculture, viticulture,
nursery, and animal and poultry husbandry; and the necessary Accessory Uses and Structures
needed for harvesting, packing, treating, or storing, excluding forestry. Agriculture does not
include the growing of marijuana for Medical Use, Personal Use, Caregiver, or Optional Premises
Cultivation Operation (OPCO) purposes.
Enclosed Locked Space. Shall nrean a permanent or semi-permanent structure covered and
surrounded on all sides (eg. walls, roof and doors) so that no plants are visible to the public or
adjacent property that is securerd at all points of ingress or egress with a locking mechanism
designed to limit access such as with a key or combination lock.
Marijuana, Personal Use. Notvvithstanding 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 seizune 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 nrade available for sale.
c. Transfer of one ounce or less of mar'rjuana without remuneration to a person who is
twenty-one years of age or older.
d. Consumption of ntarijuana, provided that nothing in this section shall permit
consumption that is conducted openly and publicly or in a manner that endangers
others.
e. Assisting another person who is twenty-one years of age or older in any of the acts
described in paragraphs (a) through (d) ofthis subsection.
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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.
XVlll, Sec. 14 (f).
To address size thresholds in the LUDC, staff recommends that the growing of marijuana for either
personal or medical use be limited to size/square feet per an individual property/parcel and by adopting
a maximum marijuana plant count for an individual property/parcel.
SQUARE FOOTAGE OF GROW SPACE AND PLANT COUNT TIMITATION
The following recommended text amendment is to address a change to the standards instituting a square
foot growing space and plant count limitation. Staff believes this size and plant count limitation
acknowledges individual rights to grow medical or personal marijuana while protecting the citizens of
Garfield County and neighboring property owners from safety risks caused by unrestricted growing of
personal marijuana mentioned above, risks associated with unsafe building practices found in personal
marijuana grow structures, and other major nuisance issues.
A benefit of adopting regulations based on square footage is that the size limitation more directly address
building safety concerns and accounts for the transient nature of the marijuana plants, meaning that if a
landowner moves the plants, the County still may be able to demonstrate that they were growing
marijuana outside of the allotted square footage. Meanwhile, some jurisdictions are using a 35 plant count
cap which is derived from the ability of caregivers to grow up to 30 plants without a State granted waiver
plus the ability for a person to also grow 5 plants for personal use. ln 20L4, a 1-2 plant count was proposed
that was based upon the ability for a person to grow 6 recreational plants for oneself and 5 for another.
Based on input from the Building Official as well as from other jurisdictions, if the Board considers a grow
area limitation, 300 square feet of grow area per property is a recommended area limitation. For
reference, 300 square foot is approximately the size of a modest living room or about the size of a one-
car garage. ln addition, a benefit of adopting regulations that includes the number of plants is that the
plant count tracks very closely to the constitutional amendments for the number of plants allowed for
medical and personal marijuana. To this end, Staff recommends a standard that limits personal, medical
and caregiver grows to 300 square feet and not to exceed 36 plants.
Standards. ln 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-L2OL; a section
currently designed for accessory uses and structures. Note that Amendment 20 (Medical) does
6lPage
not require growing to occur in Enclosed Locked Space, but staff is recommending that become a
more restrictive standard for growing medical or caregiver marijuana within the County.
7-L20L C. Marijuana, Medical, Personal or Caregiver
i. Any person growing marijuana for their own medical use, for their patients'
medical use, or for personal use shall comply with the County land use code
and the adopted Building Code.
Any person growing marijuana shall grow it in an Enclosed Locked Space not
viewable by the public or adjacent property.
All cultivation of marijuana shall only occur as an accessory use to a Dwelling
Unit.
All cultivation of marijuana shall only occur in the primary residence of the
patient, caregiver or person over 21 years old, or in an accessory structure on
the same property.
Each Lot is restricted to the following marijuana growing space and plant count
limitations regardless of the number of patients, primary caregivers, or persons
over the age of 21 residing on one Lot:
Iil.
tv.
v.
20,000 Square Feet or more and
with 2 or fewer Dwelline Units
300 Square Feet and not to exceed 36 Plants per Lot
Less than 20,000 Square Feet and
with 2 or fewer Dwellins Units
100 Square Feet and not to exceed 12 Plants per Lot
Any Lot with 3 or more Dwelling
Units
100 Squire Feet and not to exceed 12 Plants per Dwelling Unit
vr.
vlr.
All cultivation of marijuana shall not cause odors, smoke, heat, glare or light
that is detectable to a person of normal senses beyond the property line of the
property upon which the use is being conducted, or in an adjacent dwelling unit
or public area.
All chemicals utilized in the growing of marijuana shall be used, stored, and
disposed of in accordance with all applicable laws and regulations. ln addition,
all spent soils shall be disposed of in accordance with all applicable laws and
regulations.
TlPage
Uses. ln order to provide additional clarity about the accessory growing use, it is recommended
that the Use Table 3-403 is modified to reflect this type of accessory use.
luilding or Strrrchrg, Accessory P P P P P P P a P P P P 7-1201
:eoce. lledg€ or lffal P P P P P P P a P P P P 7-1201
HrJHldr
>redrrer ($gR and Plant Colrlt
,nitatoos)
P P P P P P P a P P P P 7-r201(C)
lf the Board decides to regulate the growing of personal marijuana as provided herein, staff also
recommends the heading description for Section 7-1201, be modified to state "The following shall apply
to all Accessory Buildings, Structures and Uses."
VI. RECOMMENDED FINDINGS
1. The proposed text amendment is in compliance with any applicable intergovernmental
agreements,
2. The proposed text amendment does not conflict with State Law.
SlPage
Ad Name: 12380611A
Customer: Garfield County Building
Your account number is: 1008693
PROOF OF PUBLICATION
THE RTFLE
CITIZEN TELEGRAM
STATE OF COLORADO,
COI.,NTY OF GARFIELD
I, Randy Essex, do solemnly srvear that I am Publisher
of The Rifie CitiTen Telegran, that the same t,eekly
nervspaper printed, in whole or in part and published
in the Counry of Garfield, State of Colorado, and has
a general circulation therein; that said nervspaper has
been published continuously and unintenuptedly in
said County of Carfield for a period of more than fifty-
trvo consecutive rveeks next prior to the first publication
of the annexed legal notice or advertisement; that said
newspaper has been admitted to the United Slates
mails as a periodical under the provisions of the Act of
March 3, 1879, or any amendments thereofl and that
said nervspaper is a weekly nervspaper duly qualified
for publishing legal notices and advertisements rvithin
the meaning of the larvs of the State of Colorado.
That the annexed legal notice or advertisement was
published in the regular and entire issue ofevery number
of said rveekly newspaper for the period of !
consecutive insertions; and that the first publicarion
ofsaid notice ryas in the issue ofsaid nervspaper dated
912212016 and that the last publication of said notice
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David Pesnichak
From:
Sent:
To:
Subject
David,
Stuart McArthur <Stua rtMC@parachutecolorado.com >
Tuesday, August L6,20L6 10:12 AM
David Pesnichak
FW: Personal, Medical, Caregiver Mariiuana Regs - GarCo Text Amd - Refenal
The Town of Parachute supports the proposed changes by the County regarding the proposed regulation ofthe size and
plant county of personal, medical and caregiver marijuana based on property and size.
SfiMf,ts. t4drthul
Town Manager
Town of Parachute, Colorado
970-285-7630, X-106
From: Mark Chain [mailto:mchain@sopris.netl
Sene Tuesday, August 16,2016 9:08 AM
To: Stuart McArthur <StuartMC@ parachutecolorado.com>
Subject RE: Personal, Medicat, Caregiver Marijuana Regs - GarCo Text Amd - Referral
Stuart: I have reviewed this and have no concern with how this proposed code change could affect . lt ls being proposed
by the BOCC to try to get some reasonable handle on the nurnber of plants caregivers, medical marijuana growers and
recreataonal Erowers can actually grow. The state does not enforce many of the limits presently in effect. Exampte, a
"medical caregiver" can provide pot for up to five patients and gross six plants each, and can then get a waiver to care
for more patients, etc. theoretically, it can get out of hand. Greenhouses are also exempt from the bullding code which
provldes other loopholes.
The proposed regulations atso provide for enforcement via odor control and other such ltems.
I can wrlte something up in more detail if you would like. l'm also not sure of your procedures when you get a referral
from the County on land use items. Does someone on your staff put comments together and then that tetter comes
from either Board or Planning Commission? We should talk to see if you want me to proceed further.
From what I understand, thls is a Semi- hot button lssue for some people in the town. Supporting reasonable
regulations in the County may be seen as a good thing.
Let me know orcall and we can discuss. Thanks, Mark
Mark Chain
811 Garfield Avenue
Colorado River Fire Rescue
David Pesnichak
Senior Planner
108 8th Streer, Suite l0l
Glenwood Springs, CO
Reference: TXTP-8473
September 6,2016
David,
I have reviewed the proposed Code Text Amendment for the Personal Use,
Medical Use, and Caregiver-Marijuana Regulations.
CRFR is in full support of the proposed regulations from a public safety
standpoint. With all of the non-commercial grow operations in our fire district we
have concerns for public and firefighter safety. The grow operations will normally
be in non-placarded buildings and homes that are designed for other uses. Our
concerns are:
l. The normal electrical load on a building being expanded to a grow
operation. Electrical is usually expanded without an electrical inspection
and may not be to code which could lead to structure fires and possible loss
of life.
2. Entanglement situations in grow rooms that we would need to enter for fire
suppression or emergency medical response. Entanglement can come from
extension cords and/or cables, chains, rope, and wire for hanging light
fixtures along with other equipment that involves grow operations
3. ChemicaU pesticide storage and exposure issues to our personal that would
be responding to the emergency.
Due to the number of suspected non-commercial grow operations being located in
our fre district, some of which could be in residential homes, we would ask the
County Code Enforcement officer keep us informed of the suspected non-
comrnercial grow oPerations so we can inform our staff of the potential hazards
that they may be encountering on an emergency response or calt for service.
Col,orado River Fire Rescue
With the passage of the new marijuana laws we have had to adapt to new response
situations and encounter different hazards. We expect and train for emergency
response to commercial grow operations in our district due to the permit process,
but like the County, we do not have the ability to permit the non-commercial
grow operations. The ability to at least know where some of the non-commercial
operations are located will help us plan accordingly.
Thank you for allowing us to comment on the new proposed regulations. Please
feel free to contact me with any questions or concems.
Orrin D. Moon
Acting Division Chiefffire Marshal