CITY OF COLORADO SPRINGS PLANNING COMMISSION RECORD-OF-DECISION

September 16, 2010 Page 13

CITY OF COLORADO SPRINGS PLANNING COMMISSION RECORD-OF-DECISION

NEW BUSINESS CALENDAR

MEETING: SEPTEMBER 16, 2010 ITEM: 5 STAFF: STEVE TUCK AND LARRY LARSEN FILE NO: CPC CA 10-00043 PROJECT: MEDICAL MARIJUANA LAND USE CODE AMENDMENTS STAFF PRESENTATION Commissioner Butcher clarified the relevance of land use issues for this application, and informed the audience that the role of the Planning Commission is not to debate the economic aspect nor debate the allowance of medical marijuana (MMJ) use within the City of Colorado Springs. Mr. Steve Tuck and Mr. Larry Larsen, Senior Planners reviewed the application via PowerPoint slides along with the supplemental information supplied prior to the meeting (Exhibit A). Commissioner Suthers stated that although Mr. Larsen provided a history of the process, she didn’t feel it was sufficient and provided additional history to the Commissioners (Exhibit B). Commissioner Hartsell inquired if signage is appropriate to discuss? Mr. Tuck stated that the City is sensitive to signage; however it will not be addressed within this proposed regulation. Mr. Tuck referred to the current sign regulations contained in the City Code and the proposed business license regulations. Commissioner Hartsell inquired of the current spacing requirements (from residential uses) imposed for sexually oriented businesses (SOB) and liquor stores, and if a medical marijuana (MMJ) facility is considered less of a neighborhood detriment? Mr. Tuck discussed other spacing requirements in the code. Commissioner Gonzalez inquired of the caregiver portion of the proposed code and if it was copied directly from the State Code? Mr. Larsen stated yes, bullets 1-3 were taken directly from State Code, and bullet number 4 is in addition to that. Commissioner Gonzalez inquired if there is anything currently within the Code that treats a business the same way, and if so, is it regulated? Mr. Tuck stated the Home Occupation Permit rules are similar; however, unless a product is manufactured in the home, it cannot be sold out



of the home. The intent of a Home Occupation Permit is to discourage major businesses from manufacturing a large amount of product from a residential home. He also stated the caregiver model is meant to stay small with little to no profit being made from the sale of the grown product. Commissioner Magill inquired of the stakeholder process and the lack of consensus on distance requirements? Mr. Larsen referenced the stakeholder process within the agenda and stated the distance requirement issue was not agreed upon. The requests ranged from 0 feet – 1,000 feet. Staff is recommending a distance of 400 feet. Commissioner Butlak inquired of the earliest date a dispensary could have been opened? Mr. Larsen stated the dispensaries operating now are still not legal. The pre-application process simply recognized existing dispensaries prior to approval of local regulations per State Statute provisions. Commissioner Butlak inquired of the risk taken by dispensaries to not only open, but remain open after the passing of this code amendment? Mr. Larsen stated the proposed regulations would not take effect until the business licensing regulations are approved. Commissioner Butlak feels the industry is putting the cart before the horse. Commissioner Butcher inquired why medical office parking ratio requirements were not being required. Mr. Tuck stated the sale of the produce is similar to retail and not a medical clinic. Commissioner Hartsell inquired why the stakeholder groups did not consist of schools, churches, and other governmental institutions. Mr. Tuck stated the option was open to the institutions mentioned, but no interest to participate was ever expressed. Commissioner Cleveland inquired how many facilities would remain if the 1,000-foot spacing were required from daycares, universities, parks and schools. Mr. Tuck stated staff’s calculation did not include those uses, but over two-thirds of the existing facilities would be eliminated should 1,000 feet be required only from the original list of residential, residential child care facilities and drug and alcohol treatment facilities. Commissioner Hartsell stated that the owners of the facilities had full knowledge prior to opening that there was a risk of being in violation of future codes. Commissioner Hartsell inquired why would MMJ facilities be a permitted use in almost every commercial and industrial zone district? Mr. Larsen stated that the State’s numerous regulations will add to the scrutiny of the businesses along with annual business license renewal and audits conducted by the sales tax offices. If this use were not allowed within those commercial / industrial zones, and based upon their existing locations, staff would anticipate an increase in applications requesting MMJ facilities allowed in those areas. Commissioner Butcher stated that he has concerns with the code appearing to govern “Mom and Pop shops;” however, if there are no regulations in place for larger operations, then retailers



such as Costco, could monopolize the MMJ dispensary business making it detrimental to zoning in the future. Mr. Tuck stated that issue could be discussed should the Code amendment return to the Commission in one year for review. Currently, there are no size restrictions in place for any other type of use, but there are code requirements, such as parking restrictions, that could limit the intensity. Commissioner Hartsell inquired of the State Health Department’s involvement regarding infused product manufacturers? Mr. Tuck stated no, the County health department has decided not to govern these facilities at this time. The State will be responsible for inspection. CITIZENS REQUESTED TO SPEAK

1. Mr. Dave Munger, President of Council of Neighbors and Organizations (CONO) stated that he supports the rights of citizens to use medicinal marijuana; however, CONO opposes any exceptions to the land use code. He stated that it is important that similar restrictions be upheld by both the City and the County. If not, then one set of neighborhoods could be at a disadvantage with a concentration of MMJ facilities compared with other neighborhoods. He stated CONO recommended the 1,000-foot distance from schools and 500 feet from residential neighborhoods.

Commissioner Cleveland inquired of CONO’s position to distance requirements from universities and daycares. Mr. Munger stated that there was no consensus reached, but felt that if a provision were added, it would be supported by CONO.

2. Mr. Walt Cooper, Superintendent of Cheyenne Mountain School District 12, stated that he prefers the 1,000-foot separation distance from schools which would be similar to the National Safe and Drug Free School Act currently in place. He recommended changing the language to include preschool grade schools. He was also representing School District 11 superintendent Dr. Nicholas Gledich and Air Academy School District superintendent Dr. Mark Hatchell with approximately 106 schools within School Districts 12, 11, and 20.

Commissioner Butlak inquired of the impact upon school-aged children when walking home and passing an MMJ facility. What is the impact or difference between 400 feet and 1,000 feet? Mr. Cooper stated that the 1,000 feet is meant to serve as a buffer around the school where the children are concentrated throughout the day. Commissioner Butlak inquired of the difference 1,000 feet would make. Mr. Cooper stated he feels that more is better and the 1,000 feet is in keeping with State Statutes.

3. Mr. Dan May, El Paso County District Attorney, provided a history and definition of a caretaker. Currently 14 states allow MMJ facilities, and of those states there are four that allow one caretaker per one patient. Mr. May also stated that there has been an increase of home invasions due to home-grown marijuana operations and provided statistics of drivers caught operating a vehicle under the influence of marijuana. Youth is his main concern, and requested the 1,000-foot separation increased around schools, youth facilities and parks. He mentioned grow operations contact information is to be kept



secret by law; therefore, one could be next door to your home without your knowledge or of others in the neighborhood. The Department of Health has stated they will not regulate kitchens that produce MMJ-infused products.

Commissioner Cleveland requested Mr. May clarify his requested distance requirements from parks, sports complexes, parks, and neighborhood parks? Mr. May stated he was referring only to regional parks such as Acacia Park and Memorial Park. Commissioner Gonzalez inquired of the caregiver definition. Mr. May stated that the caretaker status allows patients to go where the caretaker is located, but the caretaker status can be prohibited from specific zones.

4. Officer Jim Spice, University of Colorado at Colorado Springs (UCCS) Chief of Police and Executive Director of Public Safety also representing the UCCS Chancellor and President, read a letter provided in Exhibit C.

5. Mr. Lyn Harwell, Chief Executive Officer of Springs Rescue Mission, was in support of a

1,000-foot spacing requirement. He mentioned that marijuana is a schedule I drug and is illegal. Within the recovery community the gateway drug used was marijuana. He preferred the proposed City Code to stay in line with the State statutes and preferred the MMJ facilites stay in line with similar requirements established for Human Service Establishments.

Commissioner Butcher inquired of his opinion of the addition of the drug and alcohol treatment centers definition added into the code? Mr. Harwell stated he was in agreement of the drug and alcohol treatment facilities definition referenced in the code.

6. Mr. Mike DeGrant, Lowell Developers, stated he too was in agreement with the 1,000-foot spacing. He was concerned that retail spaces within mixed-use zones could potentially house MMJ facilities.

Commissioner Hartsell inquired how the 400-foot spacing would be calculated if the second story is residential with first-floor retail centers? Mr. Tuck stated the distance requirement would prohibit an MMJ facility from being housed within 400 feet of an upper level residential unit. The distance requirement is calculated vertical as well as horizontal. Commissioner Butcher stated that the proposed code prohibits MMJ facilities within the Traditional Neighborhood Development (TND) zone district. Private covenants could also be established to prohibit MMJ facilities within a neighborhood. Mr. DeGrant stated his current covenants are being drafted to address MMJ facilities.

7. Mr. Doug Flinn, general counsel and chief of staff for the Catholic Diocese of Colorado Springs, stated that the diocese supports the 1,000-foot setback, and felt that all religious institutions should be added to the 1,000-foot setback to help protect children.


CITY OF COLORADO SPRINGS PLANNING COMMISSION

RECORD-OF-DECISION

8. Dr. Paula Dosen stated that the local MMJ dispensaries cater to patients that need this

drug (MMJ) to help rid their addiction to prescription drugs. She disagreed with the 1,000-foot spacing requirement.

Commissioner Butcher inquired if Dr. Dosen felt that medical office parking ratio requirements should be imposed upon MMJ facilities? Dr. Dosen stated no, this matter was addressed in February of 2010 by the MMJ steering committee and is frustrated that this issue is being addressed again.

9. Ms. Margaret Martin, an MMJ patient, opposed the spacing requirements.

10. Mr. KC Stark stated that he represents patients of an MMJ facility and was in favor of the 400-foot spacing requirement but opposed the discussed 1,000-foot spacing requirement. He displayed a map of the current local MMJ facilities (Exhibit D) and stated that by requiring 1,000-foot distances from schools, churches, and parks all of the businesses currently operating could be shut down.

11. Mr. Cal Taylor, homeowner in west side Colorado Springs, stated his concerns aren’t

related to the use of MMJ, but how the neighborhoods along and in back of Colorado Avenue have been inundated with MMJ facilities (at least 14 in the last six months). Some of the facility owners have improved the aesthetics of their site and neighborhood, but is worried about the concentrated impact to the businesses on Colorado Avenue.

Commissioner Butcher inquired of Mr. Taylor’s zone district. Mr. Taylor stated his home is in the residential zoning district which abuts the General Business zone district along Colorado Avenue.

12. Mr. Mark Waller, State Representative, explained the legislative background. Although the Colorado Statute recommended 1,000-foot spacing the local governments were given broad authority to vary and adjust for their own jurisdiction.

13. Officer Vince Niski, Colorado Springs Police Department, recommended the

Commission limit one caregiver per residential dwelling unit.

Commissioner Butlak inquired of the crime statistics provided by District Attorney May and the possible attraction of criminals to the caregiver areas? Officer Niski stated he has not seen statistics that support an increase in crime due to MMJ facilities alone, but it is the cash business associated with the MMJ retailers that attract crime.

14. Ms. Jan Doran, Council of Neighbors and Organizations representative, supported one caregiver per residence and the 1,000-foot spacing requirement. She referenced the bottom of page 43 and the top of page 44 of the agenda regarding the number of centers affected should a 1,000-foot separation be imposed. If 60 local pharmacies (Walgreens,



etc.) dispense multiple prescriptions to approximately 400,000 residents, then 107 remaining MMJ dispensaries should be sufficient to service the entire community.

Commissioner Butlak inquired of her opinion to keep caregiver contact information confidential. Ms. Doran replied that the CONO board discussed that neighborhoods would not be at a disadvantage if there is only one per neighborhood, but it is an entirely a different issue if there exist five caregivers per neighborhood.

15. Mr. Casey Elgin, retired physician and MMJ patient, was concerned that MMJ

dispensaries would create a negative impact to residential neighborhoods. He was concerned that land use regulations could be used to reduce the amount of dispensaries in our community.

16. Mr. J.D. Isaac, Walker Management Asset, supported the proposed 400-foot separation.

17. Ms. Drew Sloat, C-5 zoned property owner, recently leased her property to an MMJ dispensary and has not encountered any negative issues. She explained that the State regulates the dispensaries business hours. The dispensary does not encroach upon her upper level residential occupants during business hours or their parking spaces when residential typically need during evenings and weekends. The upper level residences appreciate the increased security measures installed in the lower level business.

Commissioner Butcher inquired of the possible conflict of MMJ dispensaries located in industrial zone districts. Ms. Sloat replied traffic patterns reflect retail sales that are more warehouse uses. The site adjacent her rental unit has more traffic from the psychiatrist office versus the MMJ dispensary.

18. Ms. Shirley Garduno displayed an email that originated from Commissioner Suthers and questioned if the communication was ethical (Exhibit E).

Mr. Marc Smith, City Staff Attorney, stated it is up to each Planning Commissioner whether they feel it appropriate to be excused. This is a legislative item that is allowed to be discussed openly. Commissioner Suthers and Hartsell stated that the email was a way to get more information from community groups that were not represented within the documented stakeholder process. Commissioner. Suthers wanted to ensure all members of the community had an opportunity to express their opinion.

19. Mr. Charles Houghton, land use attorney and co-author of the proposed MMJ ordinance created by the task force, stated when HB1284 was introduced the author stated it was its intent to put 84% of MMJ dispensaries out of business. The 1,000-foot buffer currently restricts all MMJ businesses in the town of Monument, Colorado. He recommended the 400-foot separation to prevent the closure of existing businesses.



Commissioner Butcher inquired of the reason for the clandestine nature; why was secrecy granted to MMJ facilities and not any other business? Mr. Houghton replied that if a business is not advertised then there is less of a chance for crime. He made the comparison of a bank that would not be required to disclose the location of their off-site money vault. However, the government does have knowledge of each MMJ dispensary and grow location. Commissioner Cleveland stated a whole new presidential administration could decide to enforce federal laws against MMJ. When the Drug Enforcement Administration (DEA) started raids in Denver, the State administration helped change federal policy not federal law. The DEA is working with states regarding MMJ laws.

20. Ms. Tanya Garduno, Colorado Springs Cannabis Council, felt the 1,000-foot separation is arbitrary and concerned it could put many MMJ dispensaries out of business. She described the extensive State application process and detailed security required in each retail site. She has not heard of any negative impact that would be cured by the additional 600 feet of separation.

Commissioner Gonzalez inquired of licensing and limiting store hours. Ms. Garduno replied MMJ retail business hours are limited to seven days per week between the hours of 8am-7pm.

21. Mr. William Prince, infused products business owner, stated the church adjacent his MMJ site has not been negatively impacted by his business. He was concerned that should the building currently used for religious services be vacated that another religious group would not be allowed to use the site due to the existing MMJ facility and the possible 1,000-foot separation requirement.

Commissioner Cleveland inquired of churches that move into vacant industrial sites that may have an MMJ facility in existence. How would the separation requirement impact the church? Mr. Smith stated the church could move into the area if they are fully aware of the MMJ use, but typically the separation would not preclude the church from moving into the area. Commissioner Butcher inquired which zones would allow typical bread bakeries. Mr. Tuck replied the C-5, C-6, PBC and industrial zones limit 20% of space for retail and 80% of the space for baking. Similarly, only 20-30% retail would be allowed for MMJ retail in industrial zone districts.

APPLICANT REBUTTAL Mr. Tuck clarified Mr. Smith’s explanation that if an MMJ facility exists prior to a school/religious use moving into the separation area, then the MMJ facility is deemed a legal nonconforming use and subject to standard non-conforming regulations. The MMJ facility would be restricted from expansion or intensification beyond the existing use. Mr. Tuck clarified Officer Niski’s recommendation of one caregiver per dwelling unit and mentioned is already addressed in the State regulations, but that language can be included in local regulations. Lastly, District Attorney May implied that local regulations could eliminate caregivers in residential areas but that is also regulated by the State Statutes.



Commissioner Cleveland inquired of Superintendent Cooper’s request to include preschool grade for possible increased school separations. Mr. Tuck was opposed to including the preschool level in the regulation because preschools are typically included in the public or private school institutions. DECISION OF THE PLANNING COMMISSION Commissioner Stroh appreciated everyone’s comments and testimony. His struggle is that there are more opinions versus evidence. The staff report contains months of research and comments; yet, he was concerned with the three types of MMJ facilities that could each have different spacing regulations from other types of uses. There is not enough information to make an informed decision. He preferred the discussion postponed to provide staff further research regarding three separate MMJ uses with separation regulations per use. City Council did not send this to Planning Commission with the intent of regulating the MMJ use out of business. Commissioner Hartsell felt that daycares, higher education facilities, and libraries should be included in the separation requirements. She has struggled with which zone district should permit MMJ and which zone could allow MMJ under a conditional use application. She agreed with Commissioner Stroh’s comments regarding varying distances for each type of MMJ facility because one size does not fit all. If forced to vote today she would oppose the proposed ordinance. Commissioner Magill agreed with Commissioner Hartsell and Stroh’s comments. There is a community necessity but that need should be regulated similar to liquor establishments and other uses with imposed separation requirements. The lack of enforcement concerns him because that issue is still being decided upon at the State level. The separation from religious institutions and parks is unrealistic. MMJ facilities are not compatible with daycares and schools. He felt the dispensary uses in industrial zones could create traffic conflicts with semi-trucks and families driving minivans to obtain the product. He recommended this item referred back to staff for further research. He agreed that three MMJ uses is appropriate. Commissioner Gonzalez appreciated the cross-section of persons testifying to this issue. He also agreed that the three types of MMJ uses should be separated. He recommended the 1,000-foot separation from K-12 grade schools, but not preschool or college levels. He was not comfortable adding day care centers, churches and parks. There should be separation from residential zone districts especially from dispensaries. Commissioner Cleveland recommended an increased separation for schools. He also recommended the item referred back to staff. He agreed that three MMJ uses is appropriate. Commissioner Butcher clarified the issues the Commission has expressed for the audience and also recommended further staff research. He agreed that three MMJ uses is appropriate. Commissioner Butlak recommended the proposed distances are not one size fits all for the three MMJ categories. Her sense was that the 1,000-foot distance recommendation from a few



industries, institutions or schools is that MMJ would create a social stigma. Is there a stigma with signage rather than the actual dispensary? She recommended no signage allowed within a certain distance from specific zones or tourist attractions. Commissioner Suthers concurred with the Planning Commission’s comments thus far. She requested a 1,000-foot separation from schools and to separate MMJ into three uses. Commissioner Ham recommended Ms. Garduno return to her non-profit council with the opportunity to discuss these expressed options and report back to City staff. Motion by Commissioner Stroh, seconded by Commissioner Cleveland, to postpone Item 5-File No. CPC CA 10-00043, to the November 18, 2010 meeting to provide staff time for further review based upon Planning Commission’s comments. Motion carried 9-0. Commissioner Hartsell recommended a work session at the next Informal meeting (October 14, 2010). September 16, 2010 DATE OF DECISION PLANNING COMMISSION CHAIR

Documents

CITY OF COLORADO SPRINGS PLANNING COMMISSION RECORD-OF-DECISION