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HomeMy WebLinkAboutStudy Session Packet 11/15/2010STUDY SESSION AGENDA CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO City Council Chambers 7500 W. 29 th Ave. November 15, 2010 6:30 p.m. Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge. Call Heather Geyer, Public Information Officer at 303-235-2826 at least one week in advance of a meeting if you are interested in participating and need inclusion assistance. APPROVAL OF AGENDA 1 . Staff Reports £. Medical Marijuana 3. Public Art Action Plan AITORNEVS AT LAw TO: MURRAY DAHL Ku Ii:CH Ii:N MIi:I~TIi:R R Ii:NAU 0 LLP MEMORANDUM Mayor Jerry DiTullio and City Council THROUGH: Patrick Goff, City Manager FROM: DATE: RE: Gerald Dahl, City Attorney; Dan Brennan, Chief of Police and Ken Johnstone, Director of Community Development November 3, 2010 (for the November 15 Study Session) Medical Marijuana Licensing and Regulation The purpose of this memorandum is two-fold: (1) to give an update of recent developments concerning the regulation of the cultivation, production , use and sale of medical marijuana, and (2) to request direction from Council on how to proceed with appropriate licensing and regulation, or banning, of medical marijuana businesses in the City also including primary care-givers and cultivation. I. Background: Regulation of Medical Marijuana Businesses In June 2010 , staff produced a memorandum (attached for your reference) describing the licensing and regulation of medical marijuana cultivation, production and use under Amendment 20 to the Colorado Constitution and the newly adopted Colorado Medical Marijuana Code, C.R.S. §§ 12-43.3-101 et seq. At that time , the Colorado Department of Revenue (the "DOR"), the state's licensing authority, was expected to produce and adopt regulations concerning its application of the Medical Marijuana Code in September 2010. Council decided to delay further discussion concerning the City's regulations until after the DOR had produced its regulations . Council adopted an ordinance extending the City's moratorium on the issuance of permits and licenses concerning medical marijuana businesses until the date that the DOR regulations "became effective." The DOR released its draft regulations in September. Under state law, the DOR is required to hold hearings on those regulations prior to their implementation. While the DOR has not produced an official calendar, the DOR should begin holding hearings on the regulations in January 2011 with an effective date set for March 2011. At approximately ninety-three pages of text, the draft regulations are extensive. Staff believes that the draft regulations provide enough guidance for the Council to lift the moratorium and enact the City'S regulations. II. Options for Council Action Staff is proposing the following options for Council's consideration: 1. Adopt an ordinance or recommend a ballot measure banning medical marijuana businesses from operating in the City. 2. Adopt an ordinance regulating medical marijuana businesses. Option 1: Adopt an ordinance or resolution or recommend a ballot measure banning medical marijuana businesses from operating in the City. The Colorado Medical Marijuana Code, at c.R.S. § 12-43.3-106, contains a local opt out provision authorizing local governments to prohibit medical marijuana businesses from operating in their communities. There are two methods by which a local government may exercise this opt out provision: o By a vote of a majority of registered electors of the local government at a regular or special election; or o By a vote of a majority of the members of the governmg board of the local government. Here, Council , acting as the governing board for the City , may , by majority vote , adopt an ordinance or resolution banning medical marijuana businesses from operating in the City. Alternatively, Council could refer this question to the voters of Wheat Ridge at a special election. There are several local governments that have followed one of these two approaches . A list of those communities is attached for your reference. It is important to note that there are two retail medical marijuana businesses currently operating in the City. If the City adopts a ban on those types of businesses, this may create two legal non-conforming uses and/or potentially run afoul of the state's anti-amortization law. Under that law, no business that was legal at the time that it was created may be forced to close . By adopting a ban on medical marijuana businesses, the City would necessarily be forcing the two existing businesses to close. This could subject the City to a lawsuit under the anti- amortization provisions. However, the anti-amortization statute predates the Colorado Medical Marijuana Code. Under general rules of statutory interpretation, in the event that two statutory provisions conflict, the more recent provision prevails. As the more recent provision, the Colorado Medical Marijuana Code authorizes the City to ban medical marijuana businesses. In addition, under the Colorado Medical Marijuana Code, the City's ability to ban must necessarily include the ability of the City to force those existing businesses to close . Thus, while the City may be subject to a lawsuit for forcing those existing businesses to close, it is not likely that the City would be forced to compensate the owners of those businesses for taking actions authorized under the Colorado Medical Marijuana Code. -2- Option 2 -Adopt an ordinance concerning the licensing of medical with changes consistent with the provisions in the Colorado Medical Marijuana Code and DOR regulations. If the Council decides to allow medical marijuana businesses to operate in the City, staff requests direction concerning some specific regulatory options for those businesses . The City is not required to adopt regulations implementing the Colorado Medical Marijuana Code because under C.R.S. § 12-43.3-301(2)(a), if the Council does not ban medical marijuana businesses or adopt regulations , then the default provisions of the Colorado Medical Marijuana Code apply. It is staff's recommendation that Council adopt some level of regulation to determine the appropriate zoning and licensing mechanisms for these businesses operating within the City. Here are the questions Staff needs Council to answer if Option 2 is selected: o What types of licenses should the City offer? The Colorado Medical Marijuana Code authorizes the City to issue the following medical marijuana licenses: 1. A medical marijuana center license. This is a license for a retail medical marijuana business. 2. A medical marijuana-infused products manufacturer license. This is a license for a business that manufacturers a product containing medical marijuana for use or consumption by a patient. Examples of products include edibles, tinctures and ointments. 3. An optional premises cultivation operation license. This is a license that can only be issued to either a medical marijuana center or a medical marijuana- infused products manufacturer for a location in which the licensee is authorized to grow and cultivate medical marijuana. o Should the City adopt a vertical integration model for medical marijuana centers? Under the vertical integration model , all cultivation activities under an optional premises license would be required to occur at or immediately adjacent to the location of the medical marijuana center licensed premises. The primary purpose of this regulatory model would be to assist the City in enforcing the Colorado Medical Marijuana Code requirement that medical marijuana centers grow a minimum of 70% of the medical marijuana that they sell at retail. In addition, under this model , no medical marijuana center could obtain a City license unless the applicant also obtained an optional premises cultivation operation license for an adjacent parcel. This type of model could limit the number of medical marijuana centers operating in the City. The City of Lakewood currently operates under this type of vertical integration model. One alternative to the vertical integration model includes allowing optional premises medical marijuana cultivation operations to be in separate and non-adjacent facilities from medical marijuana center locations. One purpose for this is that land use impacts from cultivation operations may include additional electrical power usage , -3 - significant water use, chemicals and odors associated with growing plants . These types of impacts are typically not conducive to retail locations. o If the City adopts a vertical integration model, what is the appropriate zoning for those businesses? Community Development Staff proposes that vertically integrated medical marijuana businesses be allowed as a use by right in the City's Cl (light commercial) and I (industrial) zone districts. The Police Department supports keeping medical marijuana businesses in the City's Cl districts for reasons of safety and enforcement. o If the City does not adopt a vertical integration model, what is the appropriate zoning for medical marijuana businesses? Community Development Staff and the Police Department Staff agree that if the City does not adopt a vertical integration model, retail medical marijuana centers should be allowed as a use by right in the City'S Cl (light commercial) district and that optional premises cultivation operations and medical marijuana-infused products manufacturers should be permitted in the City's I (industrial) zone district. o Does Council want to reduce or eliminate the Colorado Medical Marijuana Code 's default provision that prohibits medical marijuana businesses from operating within 1000 feet of certain locations? The Colorado Medical Marijuana Code prohibits medical marijuana businesses from operating within 1000 feet of schools, child care facilities or drug treatment and rehabilitation centers. However, it does authorize the City to adopt less stringent distance requirements. Staff previously recommended that the 1000 foot distance limitation be reduced to 500 feet. Maps of the City demonstrating these distance limitations have been attached to this Memorandum. Map A concerns the 500 foot limitation. Map B concerns the default 1000 foot limitation. o Does Council want to adopt a provision limiting the distance between licensed premises? The Colorado Medical Marijuana Code authorizes the City to adopt a prOVlSlon limiting location of the distance between medical marijuana licensed premises. Currently, the City of Lakewood prohibits medical marijuana centers from operating within three quarters of a mile of another medical marijuana center. Attached to this memorandum is Map C which demonstrates this distance limitation in conjunction with the default 1000 foot limitation described above. As demonstrated on Map C, if both limitations were adopted by the City, the available locations for operating medical marijuana facilities would be limited. As a result, the total number of medical marijuana facilities would also be limited. -4- o Who will serve as the City's local licensing authority? The Colorado Medical Marijuana Code requires all local governments issuing licenses to medical marijuana businesses to name a local licensing authority. Council may designate an administrative office or a division thereof, such as the Tax and Licensing Division of the City Manager's office, as that local licensing authority. Alternatively, Council may designate a deliberative body, like the City's Liquor Authority, as the local licensing authority. Staff recommends that Council name the Tax and Licensing Division of the City Manager's office as the City's local licensing authority for the purpose of issuing medical marijuana business licenses. Staff further recommends that Council provide for a hearing officer to be named by the City Manager (as is done with other regulatory matters in the City) to serve as the licensing authority for the purposes of hearing appeals and show cause matters. Although the Liquor Authority has expressed interest in becoming the licensing authority for medical marijuana business, Staff believes that this would make the process less efficient and effective because the requirements of the Colorado Medical Marijuana Code are detailed and technical. As such, a citizen committee is likely unprepared to interpret and apply those requirements without significant staff involvement. Naming an administrative office is preferable because it will be more efficient and cost effective. o How broad or deep should the City's regulations be? With complex regulatory subjects, such as elections and liquor licenses, some municipalities opt to adopt by reference all or substantially all of the state regulations concerning those subjects in their respective codes. Currently, the City regulates elections and liquor licenses through references to the respective state statutes covering those subjects. This allows the City to regulate those subjects under the extensive state law provisions without the City extending its Code unnecessarily. Does Council favor adopting similar references to state statutes and regulations concerning medical marijuana businesses? The alternative would consist of a lengthy ordinance that contained language that was largely pulled from state statute. Once these decisions have been made, staff will present a draft ordinance for Council's consideration. III. Regulation of the Activities of Primary Caregivers This portion of the memorandum concerns the use of property within the City by primary caregivers. Recall, that Amendment 20 to the Colorado Constitution provides patients and primary caregivers with an affirmative defense or exception to criminal prosecution concerning their medical use of marijuana. Medical use is defined in Amendment 20 as the "acquisition, possession, production, use, or transportation of marijuana or paraphernalia related to the administration of' medical marijuana. Under Amendment 20, primary caregivers have significant responsibility for managing the wellbeing of their patients and are authorized to grow up to six plants, in various stages of development, for each patient. A patient is permitted a maximum of six plants in varying stages of development and a maximum of two ounces of -5- marijuana in a usable form. Pursuant to the provisions in C.R.S. § 25-1.5-106(8), a primary caregiver may serve up to a maximum of five patients but may not charge those patients more than the primary caregiver's cost to cultivate or purchase medical marijuana. However, the primary caregiver may charge for the cost of providing caregiver services, e.g. grocery shopping, cleaning, etc. This summer, the Police Department and City staff received questions from City residents concerning the use of residential property within the City for cultivation activities of patients and primary caregivers. Recently, the Wheat Ridge officers contacted a resident concerning marijuana plants that were being grown in the backyard of the residence. The resident presented sufficient materials to the officers proving that the resident was a primary caregiver under Amendment 20. As a result ofthat status, the officers did not take further action. Although Amendment 20 protects patients and primary caregivers from criminal prosecution for the medical use of marijuana, they are not immune from application of the zoning provisions. Thus, the City may adopt some limited regulation concerning marijuana cultivation activities. Currently, under Wheat Ridge Code of Laws § 26-613, as a home occupation, primary caregivers are permitted to use a residential dwelling for cultivation activities as a use by right. To prevent additional unnecessary contacts by Wheat Ridge officers, alleviate neighbor concerns, and for reasons of protecting the public's health, safety and welfare, staff recommends that Council consider adopting a provision in the zoning code that limits marijuana cultivation activities to inside of structures within the City. This limitation would apply equally to optional premises cultivation operators, patients, and primary caregivers. Some other communities have adopted or considered provisions regulating primary caregivers and/or the cultivation of medical marijuana in their communities. Those regulations include: 1. Limiting the number of medical marijuana plants that can be cultivated in residential zone districts. 2. Requiring primary caregivers to obtain a municipal license or registration. 3. Prohibiting the number of primary caregivers that can operate from a single dwelling unit. 4. Regulating primary caregivers as home occupations under local zoning code provisions. IV. Conclusion The landscape concerning local and state regulation of the cultivation, sale and manufacture of medical marijuana and medical marijuana-infused products continues to develop. We will continue to follow this changing environment and present updates to the Mayor and Council as requested or as necessary to obtain further guidance concerning the City'S regulatory position. As always, please let us know if you have any additional questions or concerns. Attachments: 1. Summary of local government ban status 2. Maps A, B, & C -6- Local Governments with November Ballot Provisions Concerning a Ban on Medical Marijuana Businesses 1 Akron banned 2 Aurora banned 3 Broomfield banned 4 Castle Pines North banned 5 Elizabeth banned 6 De Beque banned 7 Dinosaur banned 8 Federal Heights banned 9 Fountain banned 10 Fraser allowed 11 Granby banned 12 Hillrose banned 13 Hot Sulphur Springs banned 14 Jamestown banned 15 La Junta banned 16 Lake City banned 17 Lone Tree banned 18 Loveland banned 19 Minturn allowed 20 Olathe banned 21 Otis banned 22 Ouray banned 23 Paonia banned 24 Ramah banned 25 Sugar City banned 26 Windsor banned Local Governments that Adopted Bans on Medical Marijuana Businesses by Vote of Council 1 Avon 2 Bayfield 3 Broomfield 4 Calhan 5 Castle Rock 6 Foxfield 7 Ft. Morgan 8 Grand Lake 9 Greenwood Village 10 Hayden 11 IIlif 12 Kersey 13 Kiowa 14 Log Lane Village 15 Parker 16 Peetz 17 Superior 18 Trinidad 19 Vail 20 Westminster 21 Silver Cliff 22 Wellington 'P .. c CP E .c u ca .. .. c( 3 11 MAPA ~ Attachment 2 3115000 3120000 Streets Drugs and Alcohol Center Buffer L Drug and Alcohol Centers D Schools Buffer D Schools Daycares Buffer D Daycares N C-1 t C-2 1,200 2,400 4,800 .. ~~-==-........ Fee State Plane Coordinate Projection ColOrado Central ZOne Datum: NAD83 DISCLAIMER NOTICE: This is a pictorial representation of geographic and demographic information. Reliance upon the accuracy, reliability and authority of this information is solely requestor's responsibility. The City of Wleat Ridge , in Jefferson County, Colorado -a political subdivision of \he State of Colorado, has compiled for its use certain computerized information. This information is available to assist in identifying general areas of concem only The computerized infonmation provided should only be relied upon with corroboration of the methods , assumptions , and results by a qualified independent source. The user of this information shall indemnify and hold free the City of Wheat Ridge from any and all liabilities, damages, lawsuits, and causes of actIOn that result as a consequence of his reliance on information provided herein. Medical Marijuana Zone Districts 500 Foot Buffer DATE : 112712010 31 311 31 MAPB ! 3110000 Streets D Complete Buffer C Drug and Alcohol Centers D School s D Daycares N ~ C -1 C-2 1,200 2,400 4,800 .. ~~-==-........ Fee State Plane Coordinate Projection Colorado Central Zone Datum ' NAD83 DISCLAIMER NOTICE: This is a pictorial representation of geographic and demographic information. Reliance upon the accuracy, reliability and authority of this information is solely requestor's responsibility. The City of Wheat Ridge , in Jefferson County, Colorado -a political subdivision of the State of Colorado, has compiled for its use certain computerized information . This information is available to assist in identifying general areas of concem only The computerized information provided should only be relied upon with corroboration of the methods , assumptions , and results by a qualified independent source . The user of this information shall indemnify and hold free the City of Wheat Ridge from any and all liabilities, damages, lawsuits, and causes of action that result as a consequence of his reliance on information provided herein. Medical Marijuana Zone Districts 1,000 Foot Buffer DATE : 112712010 31 31 3120000 3125000 MAPC 3100000 31 3 115000 31 Streets 3/4 Mile Buffer Existing Dispencaries D Drugs and Alcoholl Center Buffer D Drug and Alcohol Centers D Schools Buffer D Schools Daycares Buffer Daycares C-1 C-2 N ~ 1,250 2 ,500 5,000 .. ~~-=~ ........ Fe State Plane Coord i nate Projection Colorado Central Zone Datum : NAD83 DISC LAI M ER NOT ICE: This is a pictorial representation of geographic and demographic information Reliance upon the accuracy, reliability and authority of this information is solely requestor's responsibility. The City of Wheat Ridge , in Jefferson County, Colorado -a POlitical subdivision of the State of Colorado , has compiled for its use certa in com puterized information . This information is available to assist in identifying general areas of concern only. The computerized information provided should only be relied upon with corroboration of the methods, assumptions . and results by a qualified independent source . The user of this mformation shall indemnify and hold free the City of Wheat Ridge from any and all liabihties , damages, lawsUits . and causes of action that result as a consequence of his rehance on information provided herein . DATE : 613/2010 [ AH lit: ( ..... ( ...... "1l: t )T{ J-l A rrO RNEVS ~T LAw TO : CC: FROM: DATE: Mayor and Ci ~uncil Patrick Goff JJ(J Gerald Dahl Brittany Scantland November 9, 2010 MEMORANDUM RE: Required dedication of public art The attached ordinance proposes additions to the Wheat Ridge Code of Laws ("Code") to require the acquisition, installation and dedication of public art in certain instances of development in the City's designated Urban Renewal Area(s). The ordinance enacts a new Article III to Chapter 18 of the Code . This new Article also cross - references Chapter 26 of the Code concerning the site development review process . Chapter 26, Section 26-103 has been amended to include a reference to the requirement of public art in certain circumstances. The aim is to create a fully integrated set of Code provisions so that a developer will be on notice of any public art requirements at the outset. The ordinance is in draft form and contains several blanks which raise policy decisions for the Council to consider. For example : What size development should require public art? In lieu of a size, is there a certain construction cost that should correspond with the requirement to acquire, install and dedicate art? What funding opportunities does the Council want to entertain from a developer? How will the public art be maintained? Please keep in mind that Article II, Chapter 18 of the Code (and corresponding administrative policies) presently addresses many of the technical questions concerning placement, selection and size of art . Attachments: 1. Council Bill Draft 1 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER ___ _ Council Bill No. __ _ Ordinance No. ___ _ Series 2010 TITLE: AN ORDINANCE ENACTING A NEW ARTICLE III OF CHAPTER 18 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE REQUIREMENT FOR ACQUISITION, DEDICATION AND INSTALLATION PUBLIC ART WHEREAS, the City of Wheat Ridge ("City") is a home rule municipality having all powers conferred by Article XX of the Colorado Constitution and the City's home rule charter ("Charter"); and WHEREAS, pursuant to section 1.3 of the Charter, the City has all the power of local self-government and home rule and all the power possible for a municipality to have under the Constitution of the State of Colorado; and WHEREAS, pursuant to this power, the City Council has previously adopted Ordinance No. 1257, codified in Wheat Ridge Code of Laws ("Code") Sections 18-21 - 18-27, concerning the acquisition, display, ownership and disposal of public works of art; and WHEREAS, to further the aims Code Sections 18-21 -18-27, the City Council has determined that it is in the best interest of the City to enact this Ordinance regarding when dedication of public art is required in connection with private development and how the same will be funded. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Chapter 18 of the City of Wheat Ridge Code of Laws is hereby amended by the addition of a new Article III to read in its entirety as follows: Sec. 18-31. Public Art Required. (1) Acquisition, dedication and installation of public art, as described in this Article, is required when the following conditions are met: A site development (public or private) is proposed, as that term is defined in Sec. 26-123 of the Code, which site development is in an area designated by the City as an Urban Renewal Area; and at least one of the following is true: a. The construction cost of the proposed site development is estimated to be at least dollars ($ .00); or b. The proposed total area of the site development is at least _____ acre(s) in size . (2) A developer is required to acquire, dedicate and install public art purs uant to this Article shall further be subject to the requirements of Se c. 26-103 F. Sec. 18-32. Funding for public art. (a) The acquisition, dedication and installation of public art required by this Chapter shall be funded in at least one (1) of the following ways , as proposed by the developer and approved by the City: (1) Tax increment financing, the terms of which shall be set forth in a corresponding TIF Agreement; (2) Development fees; (3) Foundation grants; (4) Private gifts; (5) Funding from certain federal programs directed to transportation and community revitalization; (6) Corporate sponsorship; (7) Benefits and fundraising events; or (8) Projects funded by partnerships of public and private interests . (b) At the sole discretion of the city council, and in lieu of all or a portion of the funding options set forth in (a), percent ~%) of the use tax generated from the proposed site development may be used to fund the acquisition, dedication and installation of the public art required pursuant to this Article . Sec. 18-33. Maintenance of public art. Public art acquired, dedicated and installed pursuant to this Article III shall be maintained by the City/developer as follows: [policy question]. Section 2. The following portions of Section 18-22 of Chapter 18, Article II are hereby amended as follows and the definition of "Tax Increment Financing" shall be inserted in alphabetical order in the existing definitions; the remainder of the Section shall remain as written: The following words, terms and phrases, when used in this article CHAPTER , shall have the meanings ascribed to them as in his section, except where the context clearly indicates a different meaning: TAX INCREMENT FINANCING (T1F) MEANS A FINANCING MECHANIS M GENERALLY ENTERED INTO BY AGREEMENT BE1WEEN THE CITY AND A DEVELOPER, WHEREBY, IN RETURN FOR THE COMPLETING THE PROPO SED -2- PROJECT (OR ANY OTHER TERMS AGREED UPON), T HE CITY AGREES TO SHARE A PORTION OF THE SALES TAX GENERATED FROM T HE PROJECT WITH THE DEVELOPER AT AN AGREED -TO PERCENTAGE UP T O A PARTICULAR PRE- SET DOLLAR AMOUNT OR UNTIL A DATE CERTAIN . Section 3. Section 26-103 of Chapter 26, Article I of the City of Wheat Ridge Code of Laws is hereby amended by the addition of a new subsection F to read in its entirety as follows: F. In the event the site development meets the criteria set forth in Article III , Chapter 18 of this Code, the developer is required to acquire, dedicate and install public art. In addition to the requirements set forth in this Chapter, no building permit shall issue for the project until all applicable provisions of Articles II and III of Chapter 18 have been met. Section 4. Severability, Conflicting Ordinances Repealed. If any section , subsection or clause of this Ordinance shall be deemed to be unconstitutional o r otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 5. Effective Date. This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of _ to _ on this __ day of , 2010, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for , 2010 at 7:00 p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge , Colorado . READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of _ to _, this day of , 2010. SIGNED by the Mayor on this __ day of _____ , 2010 . Jerry DiTullio, Mayor ATTEST: Michael Snow, City Clerk -3- First Publication: Second Publication: Wheat Ridge Transcript Effective Date: Approved as to Form Gerald E. Dahl, City Attorney -4-