By Teresa L. Benns
SAGUACHE—During the Saguache County Planning Commission held last Thursday, commission members voted to approve their revision of current marijuana regulations and submit them to commissioners for approval.
Land Use Administrator Wendi Maez said Tuesday that once the revised regulations are published there will be a 30-day citizens comment period followed by a public hearing on the regulations.
A good number of property owners have expressed dissatisfaction with the regulations because they feel they fail to fairly consider the rights of county landowners. 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.
Counties are advised by governmental oversight organizations to conform to a general standard to the applicable municipal or county master plan (sometimes called advisory documents). Even if a master plan is considered only an advisory document, zoning that does not conform with the plan can be subject to attack.
Even the recent extension until mid-August of the 120-day marijuana moratorium approved by commissioners to specifically address the marijuana regulations may not be long enough to do the work it will take to address the real issues, far less consider landowner rights.
It appears there are 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. These have not been addressed so far in the revision of the marijuana code.
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. And other than court proceedings, as recommended by County Attorney Ben Gibbons recently, there is no appeal from CUP approvals by commissioners.
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 formal hearings.
Oil and gas regulations
Formal public hearings are required, however, in the county’s land use code for those seeking conditional use requirements for oil and gas development. It could be said that the current opposition to marijuana grows in the county is at least as well-founded and well-supported as any opposition to oil and gas operations.
The rigorous county land use requirements for these operations far exceed any regulations enacted for marijuana operations. They include but are not limited to:
• Established need for the operation to satisfy demand for oil or gas supply;
• Suitability requirements, some of which are considered to some extent in current marijuana regulations;
• A comprehensive evaluation of the adequacy of existing roads;
• All aspects of site characteristics, which are not currently considered in the regulations;
• Compatibility with existing uses, which includes a long list of qualifications based on current subdivision and land use approvals, competent evidence already on record, a projected appraisal of how the applicant plans to “mitigate the impacts it generates,” and protect the public health, safety, welfare and property values, also agricultural interests.
• Immediately following the public hearing held on any application, commissioners are to announce a provisional verbal decision, followed in 15 days (or a time specified by commissioners) by a written resolution.
• The written resolution shall set forth findings based on the competent evidence presented at the hearing and gathered by the county and any decision is final.
This is followed by a long list of performance standards for oil and gas developers, including two pages plus on the impact to the water supply.