HomeMy WebLinkAbout4.0 Correspondence MemoMEMO
TO: Board of County Commissioners
FROM: Community Development Department
DATE: July 18,2015
RE: Proliferation of Marijuana Grow Operations in Garfield County
BACKGROUND
Since the passage of Amendment 20 and Amendment 64, 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 74, 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 not subject to the County's building code provisions and
associated permitting.
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 14 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
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 marijuana patients may designate a primary caregiver, and a caregiver may grow for up to 5
patients, unless they obtain a waiver from the state to grow for more. There are currently 17 people In
Colorado who have a waiver to grow for more than 5 patients. Statutes require caregivers to register with
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CDPHE, provide their location, and keep copies of their patient's medical mariluana,cards, however there
are no criminal or other sanctions written into the law to punish those caregivers who fail to 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.
With respect to recreational marijuana, Article XVlll, Section l-6, 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 21-. 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, 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, and
those noted by the Building Division including structural issues, inadequate ventilation, excessive humidity
in enclosed spaces which causes mold, and electrical issues associated with inadequate electrical wiring
of larger enclosed personal grow operations.
PERSONAL USE MARTJUANA (AKA RECREATTONAL)
According to Amendment 64, codified in the Colorado Constitution Article XVlll, Section L6,
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
2L 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 anothe/'
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person. This has resulted, we believe, in recreational grow 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 L4,
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 "patient x
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.
OPTIONS FOR REGULATION
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
plantsthatcanbegrownonasingleproperty. Otherjurisdictions(eg.BoulderCountyandParkCounty)
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 20L4, 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.
RECOMMENDATION
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
language of the regulations. These terms are consistent with the terms used in the State Constitution.
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:
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Agriculture. The use of land for production, cultivation, growing and harvesting of crops and
plants; raising and breeding livestock, commercial animal feed 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 either medical or recreational purposes
Enclosed Locked Space. Shall mean a permanent or semi-permanent area covered and
surrounded on all sides (eg. Walls, roof and doors) so that no plants are visible to the public that
is secured 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. 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 another 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
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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 or by adopting a
maximum marijuana plant count for an individual property/parcel.
SQUARE FOOTAGE OF GROW SPACE LIMITATION - ATTERNATIVE
The following are the series of recommended text amendments to address a change to the standards for
a square foot growing space limitation, should the Board want to consider this approach. Staff believes
this size limitation clearly 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, we still may be able to demonstrate that they were growing marijuana outside of the
allotted square footage. 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.
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 7-1207; a section
currently designed for accessory uses and structures. Note that Amendment 20 (Medical) does
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-L?OL 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.
ii. Any person growing marijuana shallgrow it in an Enclosed Locked Space not
viewable by the public.
iii. Each property is restricted to no more than 300 square feet of marijuana
growing space regardless of the number of patients, primary caregivers, or
persons over the age of 21 residing on one Lot.
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.
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luilding or Struciure, Accessory P P P P P P P a P P P P 74m1
:cncc, Hedge or Wall P P P P P P P a P P P P 7-1m1
v'larijuana, Personal Use, MedicalUse o
:iranliar 1,,h {^ ah0 am,ara Emrl P P P P P P P a P P P P 7-12011C1
PTANT COUNT LIMITATION - ALTERNATIVT
The following are the series of recommended text amendments to address a change for a plant count
limitation, should the Board want to consider this approach. A benefit of adopting regulations based on
the number of plants is that the plants count tracks very closely to the constitutional amendments for the
number of plants allowed for medical and personal marijuana.
Some jurisdictions are using a 36 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 6 plants for
personal use. ln 2074, a 12 plant count was proposed that was based upon the ability for a person to grow
6 recreational plants for oneself and 6 for another. The number of plants can be toggled with for
appropriateness and should be considered in regard to size, scale and other related issues such as building
and nuisance impacts.
Standards
7-tz0t 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.
ii. Any person growing marijuana shallgrow it in an Enclosed Locked Space not
viewable bythe public.
iii. Every property is restricted to no more than 36 marijuana plants regardless of
the number of patients, primary caregivers, or persons over the age of 21
residing on one Lot.
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.
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luiHing or Structure, Accessory P P P P P P P a P P P P t-1201
:ance, l{cdge of Wall P P P P P P P t P P P P 7-1201
!,lariJuana, Personal L,se, Medical Use o
}miwr & rn tn ?A nlantc)P P P P P P P a P P P P 7-1201(Cl
lf the Board decides to regulate the growing of personal marijuana as provided herein, staff recommends
the heading description for Section 7-L2Ot be modified to state "The following shall apply to all Accessory
Buildings, Structures or Uses."
TEXTAMENDMENT PROCESS
Should the Board decide the County should take steps to address these issues as presented, an affirmative
decision needs to be made to initiate a text amendment process pursuant to Section 4-t74 of the LUDC.
This process requires a noticed public hearing before the Planning Commission for review and
recommendation and a noticed public hearing before the Board for a final decision.
TlPaBe