Marijuana regulations out of sync with county land use code


SAGUACHE — Both the Master Plan developed by the county as well as the Strategic Plan clearly show that while Saguache County officials have proposed laws favoring landowners for consideration, such consideration has never materialized.

In addition, the often-expressed desire of many county residents that commissioners become more transparent in conducting county business is not reflected by recent events. And as pointed out to commissioners by the strategic planners they hired in 2014-2015, the county’s managerial staff is not prepared to implement the strategic plan as proposed, (far less administer the complicated process of evaluating, approving and policing marijuana grows).

That seems unlikely to change anytime soon, since the county’s efforts to find an administrator could take “months,” according to one unconfirmed report. And in the meantime, administration has not yet announced who will be running the county now that Lyn Zimmer-Lambert has retired — the remaining Co-Administrator/Land Use Director Wendi Maez or an interim administrator.

The recent 120-day marijuana moratorium approved by commissioners to focus on adjusting the marijuana regulations may not be long enough to do the work it will take to address the real issues. As stated last week, first a Landowner’s Bill of Rights should be considered before even touching the regulations, since this would automatically resolve many existing issues.

But secondly, it appears the county has some fundamental discrepancies and inconsistencies to address which exist between the Land Use Code regarding Conditional Use Permits (CUPS) and marijuana regulations. These are rooted in the manner in which the county has written the marijuana regulations, but also exposes some seemingly contradictory issues within the Land Use Code itself. The following points can be made after reading the Land Use Code and applicable legal materials:

  • In adding the marijuana regulations to the Land Use Code, it is not clear if the regulations supersede the CUP regulations or whether the already existing regulations on CUPS prevail. It would seem that since nearly all marijuana cultivations have been issued a CUP, the CUP regulations would take precedence, but this is not stated in the Land Use Code.
  • If the CUPS do take precedence, as it seems they should, then why has Art. IV 8.3.2 to notify landowners within 1,500 feet of a proposed CUP by certified mail notification 45 days prior to a Saguache County Planning Commission (SCPC) meeting — so they may submit “written or oral statements” — been ignored? Nearly all those who have complained of marijuana cultivations in their immediate vicinity have noted this omission. So either the grows they are complaining about are illegal or the CUP notice was not given as required. The SCPC, when dealing with this issue, has only cited the state marijuana laws governing signage, not existing Land Use Code regulations. States, however, do not deal with CUPS; this is left to the individual counties.

The comments made at hearings conducted by the BoCC before approval of CUPS or at the time of the SCPC review, if such hearings are formal, should be limited to applicants and those landowners adjacent to the cultivations, not opened to others attending these meetings who do not have a specific interest in the CUP. This is according to standard practices.

  • Notice of proposed marijuana cultivations also must be sent to all those living in municipalities according to this same regulation. There have been complaints for some time now that those near grows within the city limits of Moffat were never notified of any cultivation.
  • Art. IV 8.3.4 states the BoCC may hold a public hearing on any CUP after referral by the SCPC. Notice of the hearing is to be published in a newspaper 30 days prior to the hearing. A record of the hearing shall be maintained. IF no adverse or negative comments are received, a public hearing may not need to be held. But it is left entirely up to BoCC whether a hearing needs to be held or not.

Other counties in Colorado regularly schedule public hearings for most CUPS. It appears that even despite the fact adverse comments are received by adjacent landowners, Saguache commissioners choose not to schedule such hearings. Perhaps this is why 29 CUPS have been approved within a short period of time. Hearings take time and can lengthen the process, but allow everyone with an interest the right to have a say.

  • In several CUP considerations, after review by the SCPC but prior to BoCC approval, it has been brought to the attention of commissioners that errors have been made in either filing the applications or investigating them for accuracy and legality. According to Art. IV 8.3.1 the Land Use director will review the application to see if it is “complete and eligible” for recommendation to the SCPC. In Art. IV 8.4.1, there is to be no CUP approval unless ALL requirements are fulfilled, but this has not been the case.
  • Art. IV 8.4.4 — Reasonable suggestions and objections from persons in the neighborhood are a measure of compatibility (with use) and will be considered. This places the county as judge and jury on what is reasonable and unreasonable. Reasonable and/or unreasonable should be defined within the regulation itself for the benefit of those objecting.
  • Art. IV 8.4.7 — It will be policy to accommodate reasonable conditional uses applied for; conditions and modifications may be offered as a means of mitigating adverse effects of the use… Once again, this allows the county to be the interpreter of “reasonable.” This explains why, as stated by one SCPC member, CUPS must be approved if they appear “complete and eligible” — to satisfy county policy. This could be interpreted as a built-in bias against fair consideration of complaints by adjacent landowners, especially considering what has already been listed above.
  • In the marijuana regulations, there are no provisions for public hearings regarding CUPS. State Marijuana Enforcement Division (MED) regulations provide:

“12-43.4-302. Public hearing notice - posting and publication

(1) If a local jurisdiction issues local licenses for a retail marijuana establishment, a local jurisdiction may schedule a public hearing on the application. If the local jurisdiction schedules a hearing, it shall post and publish public notice thereof not less than ten days prior to the hearing. The local jurisdiction shall give public notice by posting a sign in a conspicuous place on the license applicant's premises for which a local license application has been made and by publication in a newspaper of general circulation in the county in which the applicant's premises are located.”

C.R.S. 12-43.4-309

“(1) Local jurisdictions are authorized to adopt and enforce regulations for retail marijuana establishments that are at least as restrictive as the provisions of this article and any rule promulgated pursuant to this article.”

  • Art. 1-1.7.1 — The Saguache County Land Use Code only sets out “minimum requirements” — when inconsistencies arise “more stringent standards shall control…by agreement of law.” This is very similar to the above state statute. More stringent standards would require a public hearing for CUPS and adjacent landowner notification.
  • Also it is clear from statements made by the Land Use Director and commissioners themselves that they feel the state MED regulations give them permission to exceed state law in granting variances from their own regulations. But according to a Colorado Supreme Court decision in 1988, local governments can regulate, but state law preempts any conflicting local rule. Saguache County’s claim to autonomy from the state could be litigated, but this state Supreme Court Decision seems to be a pretty good indicator of what the outcome would be.

 

Summary

Planning commission meeting agendas are listed on the county’s website, but few even realize they have the right to protest CUP approvals at these meetings, nor to the best of this writer’s knowledge has any process for such protests ever been outlined for them by the BoCC or SCPC. These property owners deserve official notice by the county of upcoming CUPS with a description of what those protesting may or may not present as “reasonable.”

Included in this letter should be the reminder per Art. 1-1.5.5 that any citizen opposing the decision may appeal “as provided by law,” and the “law,” with any applicable time limits, should be specified. All citizens deserve the right to due process and equal consideration under the law. In limiting citizen comments at various meetings and refusing to consider valid objections to applications, these basic rights have been denied Saguache County property owners.

 

 

 

 

 

 

 


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