SCPC to begin revision of marijuana regulations By Teresa L. Benns


SAGUACHE — Saguache County Planning Commission (SCPC) work sessions are scheduled for March 12 or 15 (TBD) and March 22, also following the regular meeting March 29, to begin the process of revising marijuana regulations to better review and process retail marijuana applications. The first two meetings will be held at 5 p.m. at the Road and Bridge Building in Saguache and the last meeting at the same location whenever the regular SCPC meeting ends.

The work sessions follow citizen demand for a marijuana moratorium specifically to revise the regulations. Citizen comments are limited during a work session or are not allowed at all. A citizens’ work group was initially suggested by commissioners to examine the regulations, but was never formally approved.

Many residents in close proximity of the properties proposing or engaging in marijuana cultivation have complained they never received notices before the grow applications were approved by the SCPC. Others say they protested the approval of grow applications at the SCPC meetings but their comments were largely ignored.

The possibility of bias in the wording of the Land Development Code regulations regarding the county’s “policy” to give preference to Conditional Use Permit (CUP) applicants should especially be addressed. SCPC members have been heard to comment that they must follow this policy as long as the information provided by CUP applicants is complete and accurate. In many cases, this information has not been complete or accurate but the SCPC has approved the applications anyway.

In adding the marijuana regulations to the Land Development 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 marijuana section of the Land Development Code. And as noted above, the county’s policy on issuing CUPs is questionable.

Pueblo County appears to have addressed this problem. Those revising the regulations should pattern their revisions off the ones provided by this county, which like Saguache County has allowed a large number of grows. But unlike Saguache County, Pueblo allows its citizens to participate in the application approval process as provided by law. When the term “public hearing” is seen below, this must not be confused with a public meeting.

A public hearing, formal or informal, is a legal process required for approving CUP permits, as a brief survey of practices in other jurisdictions in the state demonstrates. This means all CUP permits, not just those dealing with marijuana. This hearing must be noticed in a newspaper and copies of the notice sent to those whose property is adjacent to the grows or changes of use for the property in question, where marijuana is not involved.

The hearing is supposed to provide an impartial panel to decide the matter more as a judge would decide it, accepting evidence and hearing testimony. Where impartiality may be a problem, as is often the case in Saguache County, a hearing examiner experienced in land use matters may be employed to protect the rights of all concerned and guarantee everyone due process.

A public hearing was held by commissioners on the marijuana regulations in May of 2016. But some observe these hearings have never been routinely conducted as required by law in the county. Many citizens within close proximity of the grows have not been notified of the impending cultivation application nor advised by written notice they may protest at SCPC or BoCC meetings in a formal (or informal) hearing setting.

This is one of the omissions by county officials that has allowed these grows to be approved quickly and without the sometimes lengthy process of holding frequent hearings and deciding the matter based on the evidence presented. The following provides an overview of the hearing process as contained in Pueblo County regulations. The website should also be viewed to observe the strict vetting process the applicants are subjected to by Pueblo Land Use officials.

County of Pueblo — 5.12.70 Standards

  1. Hearings on Applications
    1. Unless approved by the Director under subsection M of section 5.12.080, a public hearing shall be scheduled and noticed as provided in section 5.12.080 for every application for a new marijuana establishment license and for change of location.
    2. At a public hearing for an application submitted under this Chapter, the Board may consider the following evidence:
      1. The application;
      2. Information submitted by the applicant in connection with the application;
      3. Findings, reports, and other information submitted by staff; and
      4. Evidence presented at the hearing by staff, the applicant, persons associated with the applicant, persons in favor of the application and persons opposed to the application.
    3. Subject to the restrictions of this subsection B, an application for a new marijuana establishment license or for change of location may be approved by vote of the Board without opening or holding a hearing.  Any such approval may take place only at the meeting for which the hearing on the application is scheduled. The Chair of the Board shall announce each such application, and if any member of the public intending to oppose the application, any board member, or member of staff requests that a hearing be held, the hearing on the application shall be opened and held.
    4. A hearing must be opened and held for every application for a Medical Marijuana Center License, a Retail Marijuana Store License or any license to be located within a Residential Area.
  1. To approve an application for a new license, the Local Licensing Authority must find that:
    1. The applicant is not a person or entity prohibited as a licensee under the provisions of this Chapter or the Colorado Marijuana Code;
    2. The applicant is qualified to operate a marijuana establishment in compliance with the provisions of this chapter and the Colorado Marijuana Code and associated regulations;
    3. The operation of the proposed establishment will not adversely affect the public health, safety, or welfare of the Immediate Neighborhood;
    4. The applicant has made no material misrepresentations on its application or other documents submitted to the Director in advance of the hearing or through evidence presented at the hearing itself; and
    5. For an establishment located in a Residential Area, there is a desire among the Inhabitants for the establishment, as demonstrated by petitions, remonstrances, or otherwise. (!)
  1. A person or business is prohibited from holding a license under this Chapter if:
    1. The person is not of good moral character as determined by C.R.S. § 24-5-101;
    2. Any owners of the business are not of good moral character as determined by C.R.S. § 24-5-101; or
    3. Any managers or persons employed or to be employed by the person or business are not of good moral character as determined by C.R.S. § 24-5-101.

5.12.080 Standards

  1. Upon receipt of an application for a license and upon a determination by the Director that the same is complete in accordance with these regulations, the Director shall schedule a public hearing upon the application to be held not less than thirty (30) days after the date of the determination of completeness.  The Director shall post and publish public notice of such hearing not less than ten days prior to the hearing.   Public notice shall be given by the posting of a sign in a conspicuous place on the premises for which application has been made and, further, by publication in a newspaper of general circulation in Pueblo County.  Notice given by posting shall include a sign, not less than 22” wide and 26” high, composed of letters not less than one inch in height and stating the type of license applied for, the date that the application has been determined to be complete, the date of the hearing, the name and address of the applicant and such other information as may be required to apprise the public of the nature of the application.  The sign shall also contain the names and addresses of the officers, directors, or managers of the facility to be licensed.  The notice given by publication shall contain the same information.  If the building in which the marijuana is to be manufactured, cultivated, or sold is in existence at the time of the application, a sign shall be posted in such place so as to be conspicuous and plainly visible to the general public.  If the building is not yet constructed at the time of application, the applicant shall post a sign at the premises upon which the building is to be constructed in such a manner that the notice shall be conspicuous and plainly visible to the general public.

http://county.pueblo.org/government/county/code/title5/Chapter5-12

Notice the emphasis above in 5.12.70 no. 4 that hearings are required for all marijuana establishments being constructed in a residential area. Commissioner Jason Anderson declined to define the term “residential” at a commissioner’s meeting last month but inferred it could apply to rural residential properties as well. Otherwise, residents would need to request such a hearing if one is not scheduled by the SCPC. It would seem that only those establishments being constructed in a commercial area could be exempt from the hearing requirements.

 

As many have noted following the discussions preceding the declaration of the marijuana moratorium, regulations are fine but they must be followed and enforced. Counties are allowed to make their own marijuana regulations but are not allowed to disregard the due process state and federal law accords to every citizen.


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