Marijuana ordinance background

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_______________________________________________________________________________

FROM: Dan Foote, City Attorney (Ext. 223) & Toby Stauffer, Planner (Ext. 280)

THROUGH: Tyler Gibbs, AIA, Director of Planning & Community Dev. (Ext. 244)

DATE: August 27, 2015

ITEM: TXT-15-02: Text Amendment – Unlicensed marijuana cultivation uses

NEXT STEP: Planning Commission’s recommendation will be forwarded to the City

Council for first reading of this ordinance on September 15, 2015 and

second reading on October 13, 2015.

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X ORDINANCE

RESOLUTION

X MOTION

_ DIRECTION

INFORMATION

______________________________________________________________________________

PROJECT NAME: TXT-15-02: Text Amendment – Unlicensed marijuana cultivation uses

PETITION: A Text Amendment to the Community Development Code to add use

definitions for cultivation of marijuana other than by licensed marijuana

businesses and to define the permissible extent of unlicensed marijuana

cultivation as an accessory use.

APPLICANT: City of Steamboat Springs, Department of Planning and Community

Development, c/o Toby Stauffer, AICP, Planner, 970-871-8280.

PLANNING COMMISSION COMMUNICATION FORM

#TXT-14-__: Unlicensed marijuana cultivation uses August 27, 2015

I. COMMUNITY DEVELOPMENT CODE (CDC) – STAFF ANALYSIS SUMMARY

CDC - Section 26-61(D): Criteria for approval. Approval of the amendment shall be granted only if

it appears by clear and convincing evidence presented during the public hearing before planning

commission or city council that the following conditions exist:

Subsection CONSISTENT NOTES Yes No NA

1) Compatibility with the community

plan. ��

2) Error or goal/objective. ��

3) Public health, safety, & welfare ��

Staff Finding: Staff finds that the proposed Community Development Code Text Amendment,

TXT-15-02, add use definitions for cultivation of marijuana other than by licensed marijuana

businesses and to define the permissible extent of unlicensed marijuana cultivation as an

accessory use, is consistent with the criteria for approval per CDC Sec. 26-61(D).

II. BACKGROUND

The CDC currently regulates the cultivation of marijuana by licensed marijuana businesses for

the purposes of commercial sales of recreational and medical marijuana at retail stores and

medical marijuana centers. The CDC also regulates the cultivation of medical marijuana by

primary caregivers in commercial and industrial zone districts and permits cultivation by primary

caregivers as a home occupation in residential zone districts.

The Colorado Constitution permits individuals to cultivate marijuana for personal recreational

and medical use. The CDC does not regulate the cultivation of marijuana for personal use. The

proposed ordinance would create new regulations for personal marijuana cultivation uses and

would modify the existing regulations for the cultivation of medical marijuana by primary

caregivers. These personal and primary caregiver cultivation uses are referred to as “unlicensed

cultivation” uses to distinguish them from the “licensed cultivation” performed by the City’s

commercial marijuana businesses.

Staff was directed to draft the proposed ordinance by the City Council after a comprehensive

review of the City’s marijuana regulations. The overall goal is to limit the impact of marijuana

cultivation uses in residential zone districts by limiting plant counts to twelve (12) plants. Larger

cultivation operations would be required to locate in commercial and industrial zone districts.

The City’s licensed marijuana businesses are heavily regulated at both the state and local level

and staff does not recommend modifying the regulations pertaining the licensed businesses.



III. DESCRIPTION

The primary changes are as follows:

Private Cultivation

The City treats private cultivation of marijuana for personal use as an incidental part of

residential and commercial uses. In other words, marijuana plants are treated in much the same

way as ordinary houseplants. This approach does not adequately address larger scale marijuana

cultivation due to the increased impacts to neighboring property, increased fire hazards, and the

tendency for marijuana cultivation effectively to become the primary use.

For these reasons, staff proposes to implement a twelve (12) plant count limit for private

cultivation in residential zone districts with the following criteria:

The responsible party must reside at the site of the cultivation;

Cultivation must be in a locked and enclosed area; and

The use must not be perceptible at the exterior of the property.

Larger cultivation operations would be deemed to be commercial and would not be permitted in

residential zone districts. These uses would be accommodated as a proposed new use, “Private

Marijuana Cultivation”, in the CC, CS, and I zone districts. Staff proposes a plant count limit of

thirty-six (36) plants in CS and CC zone districts; no limit in the Industrial zone district; and the

following criteria:

Applicant must submit a plan for odor control and odors must not be perceptible in

interior spaces of property other than the cultivation site;

The site must satisfy electric, fire, and building code requirements;

The site shall be have a compliant sprinkler system regardless of date of construction or

nonconforming status; and

The site must be inspected by the Fire Marshal for compliance regardless of whether the

project requires a building permit.

Primary caregivers

Staff recommends modifying the City’s regulations regarding caregivers to track the proposed

regulations for private cultivation uses. Caregiver cultivation uses in commercial and industrial

zone districts would be subject to the plant count limits and criteria applicable to the new Private

Marijuana Cultivation use.

Caregivers cultivating in residences would be subject to the plant count restrictions and criteria

applicable to private residential cultivation. This would eliminate the current fire inspection



requirement for residential caregiver cultivation but would also limit caregivers to twelve (12)

plants in a residential setting. Caregivers would not be permitted to operate as home

occupations.

Other Options

The proposed regulations could be strengthened in the following areas:

Use criteria could be tightened by requiring detailed operational plans and performance standards

addressing the following items:

Required submittal of peak electric load estimates and review of adequacy of electrical

system design;

Mold control and containment plan with testing requirement;

Detailed lists of fertilizer, pesticide, and other chemical use with maintenance and

distribution of Material Safety Data Sheets; and

Plans for containing offsite impacts, such as odor, and prohibition on such impacts being

perceptible offsite.

These criteria track the City of Boulder requirements, which were the most stringent of those

jurisdictions surveyed. The City of Boulder applies these requirements to any cultivation use

exceeding six (6) plants.

This level of oversight is not consistent with existing CDC provisions regarding offsite impacts.

The City relies on the following CDC language to address offsite impacts.

“The design and operating characteristics of the proposed development shall

minimize any adverse impacts on surrounding uses and shall not cause a nuisance,

considering factors such as proposed setbacks, planned hours of operation, and the

potential for odors, noise, smoke, dust, glare, vibrations, shadows, and visual

impacts from the proposed development.”

The CDC standard differs from the Boulder model in two ways. First, the City does not typically

require an applicant to produce plans for compliance at the application stage. Compliance plans

are generally only required after staff obtains evidence, via a complaint or otherwise, of

noncompliance.

For example, the City recently required detailed plans to mitigate offsite impacts of an outdoor

sawmill use. This requirement was the product of clear evidence of substantial offsite impacts to

adjacent property from this outdoor, heavy industry use. The City does not have evidence of

similar impacts resulting from indoor marijuana cultivation uses.



Second, the CDC standard requires impacts to be minimized, not eliminated entirely. The

principal application of this standard in the marijuana context would be to odor. Odor impacts in

the commercial and industrial zone districts so far do not appear to be serious enough to warrant

a zero tolerance policy.

In addition, odor mitigation efforts would most likely have to include insulation of exterior walls

and openings, air filtration, and ceiling venting. These improvements can be costly and may

discourage the relocation of larger grow operations from residential to commercial or industrial

settings.

Fire

Mitigation of fire risks associated with private and marijuana caregiver cultivation are a major

policy consideration. These uses create unusually large electric loads and an increased risk of

fire.

The proposed regulations address this issue by limiting the number of plants in residential units

and by requiring commercial and industrial units to be sprinkled and inspected for compliance

with fire, building, and electrical codes.

The proposed regulations do not require the distribution of information regarding pesticide or

fertilizer use. City fire officials do not believe that the materials currently in use present an

increased risk of fire or other hazards to responders.

Enforcement

Staff expects enforcement of the proposed regulations to be a challenge. The City currently has

no way to identify existing caregiver or private cultivation operations other than by receipt of a

complaint.

Caregivers are required to register with the state licensing authority and the department of public

health. These entities will confirm to a law enforcement agency whether a person found by the

agency to be in possession of marijuana and claiming to be a caregiver is a registered caregiver.

They will not otherwise identify registered caregivers who are located in the City and will not

provide the City with a list of caregivers registered in the City. There is no state registry for

private cultivation for personal use.

Consequently, enforcement of the proposed regulations will be complaint driven. The police and

planning services departments will coordinate their responses to marijuana cultivation complaints

in order to ensure both land use and criminal law issues are addressed. Enforcement and

coordination between the planning and police departments in this manner will be a new

responsibility and an increased workload on police and planning and code enforcement staff.

Additional employees, processes, or policies may be necessary to fully implement changes as

described in this report.

Another potential approach is to communicate the City’s requirements by mail to the owners of

property in CC, CS, and I zone districts. The owners of property used for marijuana cultivation



are jointly responsible with their tenants for compliance with City land use regulations and may

be responsive to educational outreach regarding these responsibilities. This approach would not

entirely eliminate the additional workload and responsibility for city staff resulting from

enforcement of the proposed regulations.

IV. CRITERIA FOR REVIEW AND APPROVAL

CDC Sec. 26-61. CDC text amendments.

(d) Criteria for approval. In considering any application for amendment to the CDC, the

following criteria shall govern unless otherwise expressly required by the CDC. Approval of the

amendment shall be granted only if it appears by clear and convincing evidence presented during

the public hearing before planning commission or city council that the following conditions

exist:

(1) Compatible with the community plan. The amendment to the CDC is compatible with and

furthers the community plan's preferred direction and policies.

Staff Analysis: Consistent: The proposed CDC Text Amendment is compatible with the

Steamboat Springs Area Community Plan as there are no goals or policies that conflict

with the proposed text amendment. The amendment is compatible with the envisioned

character of residential, nonresidential and industrial land use classifications, and it

supports the goals and policies in Chapter 3, Land Use (policies 1.1, 1.3, 2.1, 2.2, 3.1, 4.2

Chapter 5, Community Design and Image (goal 1, policies 1.4, 1.5, 2.2, 4.1, 4.2) and

Chapter 10 Economic Development and Sustainability (goal 2, policies 1.2, 1.6, 2.1, 3.1).

The amendment provides guidance for integrating these uses into the City fabric while

seeking input and involvement from the community.

(2) Error or goal/objective. The amendment to the CDC will correct an error, or will further

a public goal or objective.

Staff Analysis: Consistent: The amendment will further a public objective of providing a

development review process and standards that are clear, efficient, measurable, and

commensurate with impacts of the proposed uses.

(3) Public safety. The amendment to the CDC is necessary to ensure public health, safety and

welfare.

Staff Analysis: Consistent: The amendment is necessary to ensure the public health,

safety and welfare by requiring a review process and development standards that reduce

negative impacts to the community and adjacent properties.

V. STAFF FINDING

Staff finds that the proposed Community Development Code Text Amendment, TXT-15-02, to

add use definitions for cultivation of marijuana other than by licensed marijuana businesses and

to define the permissible extent of unlicensed marijuana cultivation as an accessory use, is

consistent with the criteria for approval per CDC Sec. 26-61(D).

VI. ATTACHMENT:

1. Proposed Ordinance

Documents

Marijuana ordinance background