County Unclear on How to Regulate Grow Facilities
by Karen James
Sep 09, 2010 | 3232 views | 0 0 comments | 33 33 recommendations | email to a friend | print
VALUABLE HARVEST – Mature flowering Cannabis ready for harvesting at a grow operation on the Western Slope. (Photo by Brett Schreckengost)
VALUABLE HARVEST – Mature flowering Cannabis ready for harvesting at a grow operation on the Western Slope. (Photo by Brett Schreckengost)
Lack of State Guidance Muddies Local Regulatory Process

SAN MIGUEL COUNTY – Contrary to the message on a flyer posted last week on a Telluride doorway that led to a full house at the San Miguel County Commissioners’ September 1 worksession, the commissioners are not trying to run the region’s burgeoning medical marijuana industry out of business.

But they are trying to figure how to accommodate the increasing number of applicants looking to locate commercial marijuana growing operations in unincorporated San Miguel County while at the same time protecting the surrounding areas (where law enforcement response time is often slow) from a potential epidemic of lawlessness spurred on by the unprecedented value of the crop.

“We as a community feel [marijuana] is wrongly illegalized,” said BOCC Chair Art Goodtimes, reassuring the assembled crowd that the county is not on a witch hunt against the medical Cannabis community.

“But we have to balance that as county commissioners,” he continued. “We’ve heard too many stories from California of these places getting ripped off. Quite frankly, where I live [in Norwood], I would not want to see a gun battle next to my house.”

At issue is the Colorado Medical Marijuana Code passed in June. It requires local and state licensing approval of related facilities, but the requirements have yet to be developed by either the local jurisdictions (by July 2011) or the state, leading to confusion when dealing with immediate issues at hand.

“At this time responding to the various inquiries concerning state and local licensing requirements is confusing and challenging, because neither the state nor the county have finalized or adopted standards and licensing requirements, but the state forms require county sign-off on specific marijuana related activities,” County Planning Director Mike Rozycki wrote in a memo to the commissioners.

One murky area comes thanks to the new law’s requirement that businesses certify that they were cultivating at least 70 percent of the medical marijuana necessary for their operations on or before September 1 of this year.

As a result, most local medical marijuana dispensaries – or medical marijuana centers as they are now referred to by the state law – were sent scrambling to find suitable locations for their new off-site “optional premises cultivation operations” in order to be in compliance with the requirement.

Most of the local centers (six out of eight) operate out of commercial spaces in Telluride, with no room for on-site cultivation.

Rozycki said several centers approached his department in the weeks preceding the September deadline asking the county to sign off on development permits for their new grow facilities, but he was unclear as to how exactly to proceed.

In April the BOCC enacted a temporary emergency moratorium on businesses selling or distributing medical marijuana to the public in the county’s unincorporated areas.

The moratorium was designed to give the county, which does not yet have any land use codes or other regulations specific to medical marijuana dispensaries in place, time to determine the effect of a state law concerning sales and distribution of the substance that was pending at the time.

But the language contained in the temporary moratorium did not specifically address those who might be growing or cultivating medical marijuana. The county assumed small growers would be licensed by the Colorado Department of Public Health and Environment to cultivate a limited number of plants for their personal use, or as caregivers growing a limited number of plants for a limited number of patients, and not the large commercial grow-operations now proposed.

“We didn’t fully anticipate this whole thing with the optional premise cultivation,” Rozycki explained.

“When the board talked about the moratorium in April, the focus was on dispensaries, so we didn’t have retail establishments popping up in our remote areas. The board was concerned about safety and security issues and there was concern that [dispensaries] didn’t spread all over.”

With the passage of the new law and its cultivation requirement, some centers approached the county about development permits. Others, apparently under guidance from the Colorado Department of Revenue (tasked with implementing and regulating the new industry), proceeded to develop their cultivation facilities in unincorporated San Miguel County without consulting the county.

For example, when Jeff Barnes of Telluride’s Kokopelli Wellness Center contacted the state about optional-premise cultivation, “The state said don’t go to county officials,” he said, adding that he knows other non-local dispensaries that have already established grow operations in the county without county approval.

Goodtimes quickly put the kibosh on that idea.

“The reality of it is whenever you bring commercial operation to our county, you have to go through the county,” he said. “If anybody is setting up a commercial grow operation without going through the county, I think that’s a big mistake.”

At present only one dispensary in the county, Delilah LLC in the Ilium Industrial Park, is approved for the on-site cultivation and sales of medical marijuana. It received that approval as one of two exceptions to the temporary moratorium granted in June (the other was given to C&C, LLC on Front Street in Placerville). Because both were located in zone districts considered appropriate for their proposed activities, they were deemed consistent with the county Land Use Code.

The confusion highlights a conflict between the county’s existing land use approval process and the new state law.

The L.U.C. requires a public process that would give neighboring landholders to proposed grow facilities the right to comment on them, while the state law requires that the location of the operations remain confidential and exempts them from the Colorado Open Records Act.

“We’re in state of flux, because the state passed their law but they haven’t done their rulemaking,” said Rozycki.

Until that changes (a state working group appointed to recommend draft rules pertaining to the medical marijuana industry met for the first time on August 27) the county will try to come up with some interim regulations.

“We would like to come back at the next meeting with a policy outline,” said Rozycki. And while “we’re not going to slash and burn people’s crops,” he told the group, the county would try to determine suitable licensing requirements and zone districts for the grow operations until the state comes up with some rules by which the county can be guided.

Ultimately, the county may impose more restrictive licensing rules than the state, but not less. As a result, the county could see its interim licensing requirements change, once the state comes up with its final version.

“The commissioners are not trying to prohibit dispensaries or optional grow facilities,” Rozycki said. “They just want to take a good hard look at this and make sure that where people are proposing to locate them are appropriate [locations] and are not going to put the citizenry at undue risk.”
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