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HomeMy WebLinkAboutStudy Session Agenda Packet 09-22-14STUDY SESSION AGENDA CITY COUNCIL CITY OF WHEAT RIDGE, COLORADO 7500 W. 29th Ave. Wheat Ridge CO September 22, 2014 Upon adjournment from Regular City Council Meeting Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge . Call Heather Geyer, Administrative Services Director at 303-235-2826 at least one week in advance of a meeting if you are interested in participating and need inclusion assistance. PUBLIC COMMENT ON AGENDA ITEMS The September 22"d meeting on this item is a study session of the City Council, not a public hearing. Citizen comments on this issue will be taken at the beginning of the meeting. However, the citizen comment period will be limited to 20 minutes total -10 minutes for those in favor of marijuana sales and 10 minutes for those against. This is to ensure that the Council will have sufficient time to discuss the issue. Any formal changes to the City's marijuana ordinance will be scheduled at a later date, and will include public hearings at which additional and extensive public comment will be welcomed. APPROVAL OF AGENDA .L Marijuana Moratorium ADJOURNMENT J)erx-I . .... ~·., ... ~ ., City of • .. ~WheatB.i_dge .JVc"oMMUNilY DEVELOPMENT Memorandum TO: Mayor and City Council FROM: THROUGH: Kenneth Johnstone, AICP , C~unity Development Director Patrick Goff, City Manager .lJlJj DATE: September 22 , 2014 City Council Study Session SUBJECT: Marijuana Regulatory Options ISSUE: Policy questions regarding the City's regulatory approach to the marijuana industry have recently been raised by members of the public and City Council. Specifically, potential concerns have been voiced regarding the location of certain marijuana-related establishments in proximity to certain other uses , notably schools and residential neighborhoods. In order to provide an opportunity for additional policy discussion , City Council adopted an emergency moratorium placing a moratorium on the processing of any new applications for marijuana establishments. The moratorium was adopted at a public hearing held on August 18 , 2014 and is effective through November 16 , 2014 . PRIOR ACTION: Attached is a memorandum dated August 21 ,2014 , which provides a timeline of prior actions pertaining to marijuana regulations in Wheat Ridge. The adoption of regulations has been necessary in order to respond to voter-approved state constitutional amendments and subsequent adoption of statutes by the state legislature and rules by state regulatory agencies. The City's actions have co v ered the topics of medical marijuana, retail marijuana, testing facilities ,, marijuana-infused products , residentially-based growing of marijuana and primary caregivers . FINANCIAL IMPACT: The sale of medical and retail marijuana and associated products are subject to local sales taxes. In 2013 total sales tax revenues from these products was approximately $97 ,000 . Through August, 2014, revenues in 2014 have totaled approximately $80 ,000. The City also assesses licensing fees for these establishments , which are intended to mitigate the direct costs that the City incurs in issuing the licenses as well as ongoing monitoring and enforcement. Total license fees over the past several years have averaged $14 ,000 per year. Additionally, the City has received approximately $27 ,900 from the state of Colorado through the retail marijuana sales tax sharing program. Staff will continue to monitor directs costs incurred by the City related to the issuance of these licenses and recommend fee modifications to insure the fees recovered are aligned with the costs incurred. Study Session Memo -Marijuana Moratorium September 22, 2014 Page 2 BACKGROUND: Colorado voters have approved constitutional amendments decriminalizing the consumption of medical marijuana under certain circumstances, and subsequently, the personal use and sale of retail marijuana. The state legislature has since adopted additional statutory provisions and assigned regulatory authority to the Colorado Department of Revenue, who has adopted additional rules and procedures. The state retains substantial regulatory control of these establislunents , particularly in regard to the licensure of retail marijuana establishments. The state has also given local jurisdictions the ability to regulate these establishments through the local regulatory environment. The state has given local jurisdictions the ability to ban certain marijuana establishments out1ight, or alternatively, municipalities may hold local elections for the voters to decide whether to ban said establishments. Many jurisdictions across the state and in the Denver Metro area have chosen to ban these establishments from their communities. However, the authority to prohibit marijuana-related activity extends only to businesses , occupations , and similarly-organized enterprises and not to the personal and private marijuana consumption and use that is explicitly authorized by the state constitution . Wheat Ridge Regulatory Approach: The state has adopted an extensive set of regulations governing operational aspects of both retail and medical marijuana businesses. These regulations address topics such as mandatory video surveillance, alann systems , waste disposal , inventory-tracking, and label and packaging standards. The City's regulations address permissible locations of these businesses and generally require them to comply with all applicable state laws and regulations. A city license is required for all marijuana businesses in addition to the required state license. Following is a brief summary ofthe City's existing regulatory environment, which has evolved through a series of different ordinances developed over the past several years. The City has treated medical marijuana and retail marijuana in a very similar manner. Medical Marijuana: • Centers (stor es) o Allowed in C-1 and I-E zone districts o Required separation of % mile from other centers and other retail marijuana stores , including those in adjacent Cities o Required separation by a minimum of 1000 feet from school , daycares , alcohol and substance abuse clinics and principle campuses of colleges and universities • Marijuana Infused Product Manufacturing (MJP) o Allowed in I-E zone districts o Required separation of y.; mile from other MIPs (including retail MIPs) o Required separation by a minimum of 1000 feet from the same list of uses noted above • Cultivation o Only allowed when ancillary and contiguous to an approved center or MIP Study Session Memo -Marijuana Moratorium September 22, 2014 Page 3 • Primary Caregivers o Only allowed as accessory to a legal residential use o Subject to additional rules that are very similar to the City's home occupation regulations, such as must be conducted indoors, limited to 25% of the gross floor area of the primary structure, no visible evidence of the operation, etc. Retail Marijuana • Stores o Same restrictions as medical marijuana centers • Marijuana Infused Products Manufacturing (MJP) o Same restrictions as medical MIPs • Cultivation o Same restrictions as medical cultivation • Marijuana Testing Facilities o Allowed in I-E and C-1 zone districts o No required separations from other testing facilities or any other specified uses Recent Concerns: Staff is aware of certain concerns that have been raised about the locations of existing or proposed marijuana establishments. Concerns include the following: • Locations in proximity to public parks • Locations on walking routes in the vicinity of schools • Odors associated with both cultivation and manufacturing processes • Safety issues related to certain methods of marijuana-infused product manufacturing • Generalized concerns with how the presence of marijuana establishments affects the community's image Regulatory Options: It is certainly pennissible for City Council to consider additional regulatory controls on marijuana establishments. City Council's motion on August 18 111 directed staff to bring forward various options, including the possibility of subjecting certain marijuana establishments to review through a special use pern1it, which is regulated in Chapter 26 of the Code. Following is a summary of several regulatory options for City Council to consider. Special use permit (SUP). Special uses are defined as "discretionary uses which, if properly designed, developed, operated and maintained may be approved for any specific location within a zone district wherein the special use is enumerated. The primary issues to be addressed are those related to justification of need and special design and operational considerations which mitigate potential detrimental impacts of a special use on surrounding land uses, the street system, or public services and facilities." Some examples of other special uses in commercial zoning districts include drive-through restaurants, crematories/mortuaries and car/boat/trailer sales lots. Study Session Memo-Marijuana Moratorium September 22, 2014 Page 4 The process of reviewing a special use is as follows: ~: Schedule and attend a pre-application meeting with staff, where preliminary information is exchanged about the merits of a potential application, potential issues and the process Step 2: Applicant and staff schedule and attend a neighborhood meeting, with written notice of the meeting being provided to property owners and residents within 600 feet of the subject property Step 3: Submit a SUP application Step 4: Staff sends application out on agency and inter-departmental referral Step 5. The property is posted for 10 days and adjacent property owners are given written notice of the pending application. Step 6: If no written objection to the proposed special use is received, and the Community Development Director detennines the application complies with the criteria for review, the application can be approved administratively, with or without condition. The approval can a) run with the land in perpetuity, b) be personal to the applicant and may or may not be transferable, or c) may be granted for a defined period of time, with eligibility to apply for renewal. Step 7: If an objection is received or if the Community Development Director does not find the application in compliance with the criteria, a public hearing before City Council is scheduled , including proper public notice. City Council may approve, approve with conditions or deny. Special uses are reviewed against eight specific criteria, as follows: I. The special use will not have a detrimental effect upon the general health, welfare, safety and convenience of persons residing or working in the neighborhood. 2. The special use will not create or contribute to blight in the neighborhood by virtue of physical of operational characteristics. 3. The special use will not create adverse impacts greater than allowed under existing zoning for the property. 4. The special use will not result in undue traffic congestion or traffic hazards , or unsafe parking, loading, service or internal traffic conflicts to the detriment of persons whether on or off the site. 5. The property is appropriately designed, including setbacks, heights, parking, bulk, buffering, screening and landscaping, so as to be in harmony and compatible with the character of the surrounding areas and neighborhood, especially adjacent properties. 6. The special use will not overburden the capacities of the existing streets, utilities, parks, schools and other public facilities and services. 7. There is a history of compliance by the applicant and /or property owner with Code requirements and prior conditions, if any regarding the subject property. 8. The application is in substantial compliance with the applicable standards set forth in the Study Session Memo -Marijuana Moratorium September 22 , 2014 Page 5 Architectural and Site Design Manual. It would certainly be appropriate to designate certain marijuana-related uses as special uses. Staff would suggest a few matters for preliminary consideration : • The neighborhood meetings with the broad noticing requirements could certainly become contentious and could have the practical effect of discouraging potential applicants from applying. • It is very likely that the majority of these requests would receive at least one written objection, triggering a hearing before City Council. • Some consideration could be given to developing additional criteria for review relative to these marijuana-related uses that would identify potential areas of concern. These could be supplemental to the existing eight criteria or they could be a substitute set of criteria for these particular special use applications. A dditional s eparation requirements When the various marijuana ordinances were initially adopted , some consideration was given to including separation requirements from additional uses , such as residential areas and parks . Given the preponderance of parks and residential neighborhoods in the City, there was some concern that the impact of imposing such separation requirements would be too significant, potentially having the effect of banning all marijuana establishments. That said , it remains a legitimate option to include a minimum separation requirement from residential uses and public parks. A separation requirement that is less than the 1000 feet currently being used could be considered. Staff could provide mapping that illustrates the effects of additional requirements. Siz e limitations Consideration could be given to imposing a maximum building area on various classes of marijuana establishments . For example, if there is concern that a marijuana store or a cultivation facility over a certain size is overly impactful or out of scale with the community or context within which it is located , it would be reasonable to impose maximum building area standards . By way of reference, in the City 's Mixed Use-Neighborhood zoning district , retail stores in excess of 20 ,000 square feet are conditional uses and stores over 60 ,000 square feet are not permitted. Building code modification The City is in the process of adopting the 2012 version of the International (Building) Codes. First reading on the ordinance was heard on September gth and the public hearing is scheduled for October 13 1h. As part of the local amendments being considered , the ordinance, as drafted , would impose stricter air handling standards on marijuana cultivation and manufacturing facilities to minimize the odors emanating from these establishments. Certain manufacturing processes will also be classified as hazardous in order to address public safety concerns . Council will also be considering whether certain aspects of these new regulations should be retroactively applied to existing uses , with a reasonable time period for compliance. Outright ban Study Session Memo -Marijuana Moratorium September 22 , 2014 Page 6 It remains an option for the City to consider an outright ban , whether by adoption of an ordinance by City Council or by referring a question to the public for a vote. There are options concerning the future of existing establishments in the City: I) They could be allowed to continue as legal non-conforming uses , consistent with current Code provisions governing such uses (no expansion or alteration , may continue so long as the use is not discontinued for 12 months). 2) They could be allowed to continue with different rules concerning their continuation (e.g. provide a shorter period of permissible abandonment, such as 6 months). 3) They could be required to cease operations. Background Checks In working with existing marijuana establishments , it has come to the attention of staff that the code could state more clearly that when management changes are made, the same background check procedures will apply as when making an initial license application. As part of any ordinance that may move forward , staff will propose code changes that clatify those requirements. RECOMMENDATIONS: The emergency moratorium that City Council adopted is valid through November 16 , 2014. In order to have any new regulations in place by that date, a first reading on an ordinance would need to be introduced no later than October 27th and approved at a public hearing no later than November 1oth and be effective immediately. Staff is proposing a second study session on October 13th and/or October 20th for Council to give additional consideration to different regulatory options and provide direction to draft an ordinance. If consensus is not reached at these meetings and additional discussion or research is needed , Council could consider extending the moratorium. Such an extension would need to be adopted through a standard ordinance and could also be considered on the October 27th and November I oth dates noted above. To the extent any proposed ordinance affects Chapter 26 (Zoning) of the Code, such an ordinance would also need to be refen·ed to the Planning Commission , who would conduct a public hearing and forward a recommendation to City Council. The Planning Commission has a regular business meeting scheduled for October 16t1\ which could potentially be used for that required public hearing. Staff requests general policy direction and consensus from Council. Based on the level of consensus, staff could provide more detailed regulatory options for Council consideration by the October 13th special study session or October 20th regular study session. ATTACHMENTS: 1. August 21 Marijuana regulations timeline Marijuana Regulations in Wheat Ridge Summary Timeline of public meetings Prepared August 21 , 2014, by Ken Johnstone • Ordinance enacting a temporary moratorium on the processing of any medical marijuana applications o Emergency ordinance adopted September 2009 • Ordinance extending a temporary moratorium on all applications for medical marijuana establishments o City Council (CC) 151 Reading -June 14, 2010 o CC Public Hearing -June 8, 2010 • Ordinance adopting regulations pertaining to medical marijuana establishments o CC Study Session -June 7, 2010 o Planning Commission (PC) public hearing -June 17 , 20 I 0 o CC 151 Reading -February 28 , 2011 o CC Public Hearing -March 14 , 2011 • City Council motion establishing fees for medical marijuana -March 28 , 2011 • Ordinance pertaining to the possession and use of marijuana o CC 1 51 Reading -January 14 , 2013 o CC Public Hearing -January 28 ,2013 • Temporary moratorium on the processing of all marijuana (retail and medical) related applications, effective through November 1, 2013 o CC 151 Reading -March 25 , 2013 o CC Public Hearing -April 8, 2013 • Ordinance adopting regulations pertaining to recreational/retail marijuana, including manufacturing of infused products o CC Study Session -July 26 , 2013 o PC Public Hearing -September 19 , 2013 o CC 1 51 Reading -September 9 , 2013 o CC Public Hearing -October 14 , 2013 • Discus sion of retail marijuana license fees o City Council study session -January 29 ,2014 1 Attachment 1 • Ordinance placing a temporary moratorium on the processing of applications for marijuana infused products manufacturing o CC Public Hearing (emergency ordinance)-April 28 ,2014 • Two Ordinances: 1) an ordinance amending the City's regulations pertaining to the manufacturing of marijuana infused products; and 2) and ordinance amending the City's regulations pertaining to the residential cultivation of marijuana (recreational and medical) o CC Study Session -May 19 , 2014 o PC Hearing -June 19 ,2014 o CC I 51 Reading -June 9 , 2014 o CC Public Hearing -June 23 , 2014 • Ordinance adopting International building codes including regulations pertaining to the containment of marijuana cultivation and processing odors o CC Study Session -August 18 ,2014 o CC 151 Reading -September 8 , 2014 (tentative) • Ordinance placing a temporary moratorium on the processing of all applications for new marijuana establishments o CC Public Hearing -August 18 , 2014 A total of 19 opportunities for public comments at public meetings , not counting 151 readings. 2