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HomeMy WebLinkAboutMinutes 05/31/11 PUBLIC HEARING May 31, 2011 Present: Jon Stavney Chairman Peter Runyon Commissioner Sara Fisher Commissioner Keith Montag County Manager Bryan Treu County Attorney Robert Morris Deputy County Attorney Teak Simonton Clerk to the Board This being a scheduled Public Hearing, the following items were presented to the Board of County Commissioners for their consideration: Consent Agenda Chairman Stavney stated the first item before the Board was the Consent Agenda as follows: A. Approval of Bill Paying for the Weeks of May 30, 2011 and June 6, 2011(subject to review by the Finance Director) Finance Department Representative B. Approval of Payroll for June 16, 2011 (subject to review by the Finance Director) Finance Department Representative C. Approval of the Minutes for the Eagle County Board of Commissioners Meetings for May 10 and May 17, 2011 Teak Simonton, Clerk & Recorder D. Resolution 2011 -056 Concerning an Appointment to the Basalt Regional Library District Board of Trustees County Attorney's Office Representative E. Eagle County Airport Renewal Proposal from Aon Risk Solutions for Airport Liability Insurance with Chartis Aerospace Airport Representative F. Resolution 2011 -057 Supporting the Agreement between Eagle County and the Colorado Department of Transportation for Phase Three of the US Highway 6 Shoulder Addition Project Taylor Ryan, Engineering G. Agreement between Eagle County and the Colorado Department of Transportation for Phase Three of the US Highway 6 Shoulder Addition Project Taylor Ryan, Engineering Chairman Stavney asked for an update on the CDOT shoulder paving project. Taylor Ryan spoke about the project, which has been done in phases. The project had been received well by cyclists in the valley. The county was contributing towards the project and it would be advertised in early July. Commissioner Fisher asked about the timing of the project. Mr. Ryan indicated it might be around the third week of July. It was expected to be awarded the first week of August. Commissioner Fisher asked about the construction schedule. Mr. Ryan felt like a mid - October completion would be reasonable. Chairman Stavney explained the need for the improvements for both bicyclists and motorists. 1 05/31/2011 Commissioner Runyon explained that Commissioner Menconi had been a big advocate of these improvements. Initially CDOT was reluctant to vary their 3 foot wide shoulder and allow less than that. Commissioner Runyon moved to approve the Consent Agenda, Items A -H. Commissioner Fisher seconded the motion. The vote was declared unanimous. Mr. Montag introduced Toby Sprunk the new Open Space Director for the county. Mr. Sprunk added some details about his experience in the Open Space acquisitions in Douglas County. Citizen Input Chairman Stavney opened and closed citizen Input, as there was none. Commissioner Fisher moved to adjourn as the Board of County Commissioners and re- convene as the Eagle County Liquor Licensing Authority. Commissioner Runyon seconded the motion. The vote was declared unanimous. Eagle County Liquor License Authority Kathy Scriver, Clerk and Recorder's Office Consent Agenda • Renewals A. Our dish!, Inc. d/b /a dish! #42- 28106 -0000 This is a renewal of a Hotel and Restaurant license in Edwards. There have been no complaints or disturbances in the past year. All the necessary fees have been paid. An Alcohol Management Plan is on file in the Clerk's Office and proof of server training has been provided. B. Gloria J. Deschamp d/b /a El Jebel Liquors #04- 46530 -0000 This is a renewal of a Retail Liquor Store license in El Jebel. There have been no complaints or disturbances in the past year. All the necessary fees have been paid. An Alcohol Management Plan is on file in the Clerk's Office and proof of server training has been provided. C. Rancho Viejo, Inc. d/b /a Ranch Viejo Restaurante & Bar #28- 20442 -0000 This is a renewal of a Hotel and Restaurant license in Edwards. There have been disturbances in the past year. However, none related to alcohol service. All the necessary fees have been paid. An Alcohol Management Plan is on file in the Clerk's Office and proof of server training has been provided. D. Route 6 Cafe, Inc. d/b /a Route 6 Cafe #28- 31404 -0000 This is a renewal of a Hotel and Restaurant license in Eagle -Vail. There have been no complaints or disturbances in the past year. All the necessary fees have been paid. An Alcohol Management Plan is on file in the Clerk's Office and proof of server training has been provided. E. Diamond Five, Ltd. d/b /a Coyote Cafe #04- 65986 -0000 This is a renewal of a Hotel and Restaurant license in Beaver Creek. There have been no complaints or disturbances in the past year. All the necessary fees have been paid. An Alcohol Management Plan is on file in the Clerk's Office and proof of server training has been provided. 2 05/3 1/2011 F. Kirby Cosmos Edwards, LLC d/b /a Kirby Cosmos BBQ #15- 76244 -0000 This is a renewal of a Hotel and Restaurant license in Edwards. There have been no complaints or disturbances in the past year. All the necessary fees have been paid. An Alcohol Management Plan is on file in the Clerk's Office and proof of server training has been provided. Commissioner Fisher moved that the Board approve the Liquor Consent Agenda for May 31, 2011 . consisting of Items A -F. Commissioner Runyon seconded the motion. The vote was declared unanimous. Commissioner Runyon moved to adjourn as the Eagle County Liquor Licensing Authority and re- convene as the Board of County Commissioners. Commissioner Fisher seconded the motion. The vote was declared unanimous. Attorney Update (recorded) Bryan Treu, County Attorney A. Open Session B. Executive Session 1. Legal advice regarding the regulation of medical marijuana businesses 2. Legal advice and update from Eva Wilson on discussions with Steve Jouflas regarding Highway 131 access improvements in connection with Ute Creek Storage Yard PUD Amendment 3. Legal advice re MOU with Gypsum re Eagle River Corridor Plan Manager Update (recorded) Keith Montag, County Manager 1. ECO Transit Business Plan; Kelley Collier, ECO Transit 2. Meetings Attended 3. Discussion Items 4. Communications Update Work Sessions (recorded) Fairgrounds Sign Improvements Jan Miller, Tom Johnson and Ron Siebert; Facilities Management Planning Files LUR -3171 Medical Marijuana Industry Regulations Bob Narracci, Planning 3 05/31/2011 ACTION: To amend the Eagle County Land Use Regulations to establish new and amended regulations to govern all land use aspects of the Medical Marijuana Industry. LOCATION: The proposed land use regulation amendments, if approved, will be applicable to all unincorporated lands within Eagle County, which are zoned `Commercial- General' or `Commercial- Limited'. 1. PROJECT DESCRIPTION A. SUMMARY: • In 2000, Colorado Voters approved a constitutional amendment to allow the use of medical marijuana as an alternative to treat debilitating illness.` • In 2009, Eagle County began to experience acute interest by the medical marijuana industry to establish operations locally. At that time Eagle County's Land Use Regulations did not address the medical marijuana industry. • On September 8, 2009, the Board of County Commissioners adopted Temporary Regulations to control the locations of Medical Marijuana Dispensaries in Eagle County. In November 2009, the Board adopted Temporary Regulations to control Cultivation of Medical Marijuana. • New permanent Medical Marijuana Dispensary Regulations were adopted and implemented on February 23, 2010. • In June 2010, the Colorado State Legislature passed HB10 -1284 known as the Colorado Medical Marijuana Code. • In June 2010, the Board of County Commissioners adopted more restrictive Temporary Regulations to control Cultivation and Production of Medical Marijuana which were in effect until December 8, 2010. • On November 2, 2010 a majority of the voters in Eagle County confirmed that a properly regulated medical marijuana industry should be allowed to operate in unincorporated Eagle County. • On December 14, 2010 the Board of County Commissioners conducted a public work session to be briefed on where Eagle County currently stands regarding regulatory controls for the medical marijuana industry. The Board determined, based upon local voter approval that the medical marijuana industry should be allowed to continue operating within specified areas of unincorporated Eagle County. • During the December 14, 2010 work session, the Board established policy direction for staff moving forward with the intent of making appropriate commercially zoned areas in unincorporated Eagle County accessible to accommodate the medical marijuana industry. This is to be accomplished by: 1) Reducing the minimum separation distance between medical marijuana facilities and sensitive dissimilar uses; 2) Eliminating several of the previously specified dissimilar uses, and; 3) Eliminating the Rural Center and Industrial zone districts focusing all medical marijuana industry activities within the Commercial General and Commercial Limited zone districts. • Statewide, all preexisting medical marijuana dispensaries, cultivation operations and production of medical marijuana infused food products must become properly licensed through the State of Colorado by July 1, 2012. In order to become properly licensed at the state level, these types of businesses must first become properly permitted and licensed at the local level. Four such establishments are already legally in operation; two in Edwards and two in Eagle -Vail. All are legal non - conforming in terms of zoning which means that they cannot expand or introduce new aspects of the medical marijuana industry. None of the four existing dispensaries are located in areas consistent with the county's current regulations; which in the future will conflict with the ability of the Medical Marijuana Licensing Board to grant approval in their current locations. • On April 26, 2011 the Attorney General of Colorado issued a letter indicating that while the Department of Justice will not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law, it does maintain its full authority to vigorously enforce federal law against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under 4 05/31/2011 state law. Of great concern is the fact that the US Attorneys do not consider state employees who conduct activities under state medical marijuana laws to be immune from liability under federal law. • In light of this April 26, 2011 correspondence, and in consultation with the County Attorney's Office, it has been determined that the initially proposed Limited Review process does not accomplish anything for Eagle County other than tracking the number and locations of medical marijuana related businesses. This same information will be achieved via the state mandated licensing process which Eagle County must create and implement. It is being recommended that the county zoning review be limited and these uses be a use -by -right in the Commercial General and Commercial Limited zone districts incorporating appropriate buffer and zoning protections. • Due to the fact that the Board of County Commissioners has opted to not ban the medical marijuana industry; this land use regulation amendment, as required by state statute, is intended to provide a zoning framework for where medical marijuana businesses may locate subject to operational criteria. This proposal is now being amended to allow medical marijuana businesses as uses -by -right in the Commercial General and Commercial Limited zone districts only. • Also proposed at this time is an additional regulatory standard that no commercial medical marijuana facility shall exceed 2,000 square feet in area for retail operations or 4,500 square feet to accommodate cultivation and processing operations for a combined maximum total of 6,500 square feet. PROPOSED DRAFT REGULATIONS: SECTION 2 -110. DEFINITIONS The following words shall have the following meanings when used in these Regulations. MEDICAL MARIJUANA means marijuana that is grown and sold pursuant to all applicable provisions of the State of Colorado and for a purpose authorized by Section 14 of Article XVIII of the State Constitution. (or'ig. XX/XX/XXXX) MEDICAL MARIJUANA CENTER means a person licensed pursuant to all applicable provisions of these land use regulations and the State of Colorado to operate a business that sells medical marijuana to registered patients or primary caregivers as defined in Section 14 of Article XVIII of the State Constitution, but is not a primary caregiver. (orig. XX/XX/XXXX) MEDICAL MARIJUANA INFUSED PRODUCT means a product infused with medical marijuana that iv intended for use or consumption other than by smoking including but not limited to edible products, ointments and tinctures. These products, when manufactured or sold by a properly permitted, licensed medical marijuana center or a medical marijuana - infused product manufacturer, shall not be considered a food or drug for the purposes of the Colorado Food and Drug Act, Part 4 of Article 5 of Title 25, C.R S. (orig. XX/XX/XXXA9 MEDICAL MARIJUANA INFUSED PRODUCTS MANUFACTURER means a person who is properly permitted by Eagle County and the State of Colorado to operate medical marijuana related manufacturing business. (orig. XX/XX/XXXii9 MEDICAL MARIJUANA BUSINESSES means any business relating to medical marijuana cultivation, manufacturing of medical marijuana- infused products and medical marijuana centers. (orig. XX/ MEDICAL MARIJUANA PATIENT means a person who has a debilitating medical condition that was previously diagnosed by a physician and has properly obtained a registry card from the Colorado Department of Public Health and Environment prior to engaging in the medical use of marijuana, or as this term may be defined by the State of Colorado. (orig. XX/XX/X) MEDICAL MARIJUANA PRIMARY CARE - GIVER means a person, other than the patient and the patient's physician, who is eighteen years of age or older and has significant responsibility for managing the well -being of a patient who has a debilitating medical condition and who has obtained a registry card from the Colorado 5 05/31/2011 Department of Public Health and Environment prior to engaging in the distribution of medical marijuana, or as this term may be defined by the State of Colorado. (orig. XX/XX/XX PERSON means a natural person, partnership, association, company, corporation, limited liability company, or organization, or a manager, agent, owner, director, servant, officer, or employee thereof (orig. XX/XX/XXXX) PREMISES means a distinct and definite location, which may include a building a part of a building, a room, or any other definite contiguous area. (orig. XX/XX/XXXX SCHOOL means a public or private preschool or a public or private, elementary, middle, junior high, or high school. (orig. XX/XX/) SECTION 3 -320. COMMERCIAL AND INDUSTRIAL ZONE DISTRICTS USE SCHEDULE Table 3 -320, "Commercial and Industrial Zone Districts Use Schedule ", categorizes the uses that are applicable to the County's commercial and industrial zone districts. A. Symbols. Table 3 -320 utilizes the same symbols as are described in Section 3 -300, Residential, Agricultural and Resource Zone Districts Use Schedule. B. Uses Not Listed. Uses that are not listed in Table 3 -320 shall be considered to be uses that are not allowed, unless one of the following occurs: 1. Regulations Amended. An amendment to these Land Use Regulations is adopted, pursuant to Section 5 -230, Amendments to the Text of These Land Use Regulations or the Official Zone District Map, that lists the use in the table and indicates in which zone districts the use is a use by right, allowed by limited review, or allowed by special review and in which zone districts it is not allowed. 2. Determination of Similar Use. The Community Development Director determines, pursuant to Section 5 -220, Interpretations, that the proposed use is sufficiently similar to a use listed in Table 3 -320, "Commercial and Industrial Zone Districts Use Schedule ". A use that is determined to be similar to a listed use shall be subject to the same standards as the use to which it was determined to be similar. TABLE 3-320 COMMERCIAL AND INDUSTRIAL ZONE DISTRICTS USE SCHEDULE Uses: R= Use By Right; L= Allowed by Limited Review; C/L1 C /G 1 RC Standards S = Allowed by Special Review; N = Not Allowed Medical or Dental Clinic, including acupuncture R R N R Medical Marijuana Businesses Dispel S4,11 S-L R S N S N Sec. 3 -330.I Mortuary R R N R Nightclub, Bar or Tavern L L R L Office, Business or Professional R R N R Personal Adornment /Tattoo Parlor R R N R Pharmacy R R N R Photography Studio R R N R Print Shop or Publishing R R N R 6 05/31/2011 ",;;"*• TABLE 32 Via' COMMERCL4L AND INDUSTRIAL ZONE STRICTS USE SCHEDULE Uses: R Use By Right; L= Allowed by Limited Review; C /L' C /G I RC Standards S= Allowed by Special Review; N Not Allowed µ Private Club R R N R Reading Room R R N R Resort Recreational Facility N N N S Restaurant • R R N R Shoe Repair R R N R Studio for Conduct of Arts and Crafts R R S R Sec. 3 -330 C Tailor Shop R R N R Vehicle, Aircraft and Pleasure Boat Rental S S R S Sec. 3 -330 D Vehicle, Aircraft and Pleasure Boat Sales, Storage, Service or Repair N S R N Veterinary Hospital S S SS Industrial; Service- Commerclal' Wholesale Uses Assembly, which does not include any fabrication of parts R R R R Auto Wrecking N N S N Commercial Laundry or Dry Cleaning Plant S R R N Compost Facility N N S N Construction and Demolition Debris Facility N S S S Contractor Storage Yard N S R S Distribution Center S S R S Extraction and Processing of gravel, minerals, rocks, sand or other earth products N N S N (am 12/17/02) (am 09/11/07) (am 02/23/2010) (am XX/XX/XXXX) SECTION 3 -330. REVIEW STANDARDS APPLICABLE TO PARTICULAR COMMERCIAL AND INDUSTRIAL USES Certain uses are important to the County's character and functions, but may not be appropriate in all circumstances within a particular zone district. Such uses cannot be judged solely by standards common to all uses in the zone district or by the standards applicable to all uses that are allowed by review. They also require individualized standards to review their location, site plan, operating characteristics, intensity and similar factors. Those uses in the County's commercial or industrial zone districts that require such additional standards are identified in the "Standards" column of Table 3 -320, "Commercial and Industrial Zone Districts Use Schedule ". The standards for each of these uses are established herein. The definitions of these uses are found in Section 2- 110, Definitions. The following uses are addressed in this section: A. Drive -in Facility B. Garden and Plant Materials Store C. Studio for Arts and Crafts D. Vehicle, Aircraft and Pleasure Boat Rental E. Manufacture, Assembly or Preparation of Articles or Merchandise from Previously Prepared Materials 7 05/31/2011 F. Manufacture, Compounding, Processing, Packaging or Treatment of Products G. Dwelling Units H. Adult Entertainment Use I. Medical Marijuana Businesses Dispel A. through H — No Change. Medical Marijuana Businesses Dispensaries. (orig. 2/23/2010) (am XXLIONOM9 L 1. Location. Medical Marijuana Businesses Dispensaries shall meet the following location requirements at time of their establishment: a. Medical Marijuana Businesses Dispensaries -are prohibited from locating within 308 200 feet of: (1) Any residence; excluding residential units that are located within mixed -use commercial /residential developments, (2) Any church or religious institution; (3) Any drug or alcohol rehabilitation facility; (4) Any public community center or publicly owned or maintained building open for use to the general public; (5) Any public school or private school; (6) Any public park or playground; or (7) Any licensed child care facility. (8) Any Hotel, Motel or Lodge (9) Any Retirement Home (10) Any Elderly Care Facility i. The 388 200 foot separation is measured in a direct line between the closest point of the building or unit, in the case of multi - tenant commercial or industrial buildings, within which the Medical Marijuana Business Dispensary-establishment is located, and the closest point on the lot or parcel of land upon which any of the above itemized uses are located. - It . - • center must contain at least 5,000 square fcct of contiguous floor area. medical, chiropractic, psychological services employing thrcc (3) or more defined by Section 1'I of Article XVIII of thc Colorado Constitution and any may in thc future be adopted or amended. Thcrc arc no limitations on thc number onc discipline or may include morc than onc type of medical service. 8 05/31/2011 (1) Any residence; (2) Any church or religious institution; general public; (5) Any public school or private school; (6) Any public park or playground; or (7) Any licensed child carc facility. (8) Any Hotel, Motel or Lodge (9) Any Retirement Home (10) Any Elderly Care Facility e !! . . :... •: - :.. •..... _ •-- : - . - .. •• •- :.' ... Marijuana Dispcnsary establishment is located, and thc closest point on thc lot or parcel of land upen -which any of thc above itemized uscs are located. f . " -. . . ".. .. . _.. - , :. • g. Medical Marijuana Businesses Dispensaries shall not be allowed as a home occupation or home business as defined within Chapter 2, Article 2, Definitions of these Land Use Regulations. • - - • - • .. ... , - - - - -- . .. - . thigh previously diagnoscd by a physician and has properly obtaincd a registry card from thc Colerade :. . -- _ _ - - -- - . . . - . ii or as this tcrm may bc dcfincd by thc Statc of Colorado. •• _ ! • _ - -• -- -- lie ebtained a registry card from thc Colorado Department of Public Health and Environment prior to engaging in thc distribution of medical marijuana, or as this tcrm may bc dcfincd by thc Statc of Colorado. 2. Requirements. All Medical Marijuana Businesses dispensary-faeilities shall meet the following requirements at all times: a) Have an active, up to date State of Colorado sales tax number which shall be provided to the County. b) All products and accessories shall be stored within a completely enclosed, alarmed, and secure building at all times. Products, accessories, and associated paraphernalia shall not be visible from a public sidewalk or right -of -way c) The consumption or inhalation of marijuana on or within the premises of a Medical Marijuana Business dispensary is prohibited. d) The sale or consumption of alcohol on the Medical Marijuana Business dispensary - premises is prohibited. 9 05/31/2011 e) The premises satisfy all applicable Building Codes and Fire Codes and are equipped with a proper ventilation system so that odors are filtered and do not materially interfere with adjoining businesses. f) All transactions, including the growing, processing and/or manufacture of Medical Marijuana products, shall occur indoors and out of view from the outside of the building. g) Exterior signage on a Medical Marijuana Business dispensary may indicate that marijuana may be in the store; however, all exterior signage shall comply with Chapter 2, Article 4, Division 4 -3., Sign Regulations of these land use regulations. h) A Medical Marijuana Business dispensary lawfully operating is not rendered in violation of these Land Use Regulations by the subsequent location of any sensitive use as delineated in Section 3- 330.I..1.a and Section 3 330.I.1.d, above. i) Each Medical Marijuana Business dispensary shall be operated from a fixed location. No Medical Marijuana Business dispensary-shall be permitted to operate from a moveable, mobile or transitory location. Deliveries of medical marijuana products may be delivered only by properly registered Primary Care - givers to homebound patients as that term is defined by the State of Colorado and subject to all local and State licensing requirements for such home deliveries. j) A Medical Marijuana Business dispensary shall not open earlier than 9:00 a.m. and shall close no later than 7:00 p.m. the same day. A Medical Marijuana Business dispensary may be open seven days a week. k) There shall be posted in a conspicuous location in each Medical Marijuana Business dispensary a legible sign containing the following warnings: (1) A warning that the diversion of marijuana for non - medical purposes is a violation of state law; (2) A warning that the use of medical marijuana may impair a person's ability to drive a motor vehicle or operate machinery, and that it is illegal under state law to drive a motor vehicle or to operate machinery when under the influence or impaired by marijuana; (3) A warning that loitering in or around the Medical Marijuana Business dispensary is prohibited by state law; and (4) A warning that possession and distribution of marijuana is a violation of federal law. 1) Prior to operating, each Medical Marijuana Business shall obtain and comply with terms of all applicable local and State licensing. m) Commercial cultivation and production of medical marijuana is expressly prohibited as a home occupation or home business as defined within Chapter 2, Article 2, Definitions of these Land Use Regulations. n) For the purposes of these land use regulations, the maximum amount of medical marijuana that may be cultivated and produced in any residence, at any point in time, is two ounces of a usable form of marijuana, and no more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana, regardless of the number of registered Medical Marijuana Patients inhabiting the residence. All other residential growing is prohibited. o) For the purposes of this section of the land use regulations, residence shall be defined as the entire parcel of land or lot inclusive of any accessory dwelling units, accessory buildings, agricultural buildings, and garages as defined within Chapter 2, Article 2, Definitions of these Land Use Regulations, which are held in single ownership with the primary residence. 10 05/31/2011 p) No commercial medical marijuana facility shall exceed 2,000 square feet in area for retail operations or 4,500 square feet to accommodate cultivation and processing operations for a combined maximum total of 6,500 square feet. q) Medical Marijuana Businesses are prohibited from locating inside any Planned Unit Development unless expressly allowed within the Planned Unit Development. 3. Severability. If any provision, clause, sentence or paragraph of this regulation or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the other provisions of these regulations which can be given effect without the invalid provision or application, and to this end the provisions of this regulation are declared to be severable. B. PLANNING COMMISSION DELIBERATION SUMMARY & MOTION: Eagle County Planning Commission: At the public hearing conducted on May 18, 2011, the Eagle County Planning Commission asked many questions about how the proposed separation of 200 feet was derived and why churches and religious institutions, hotels, motels and lodges are proposed for elimination from the separation criteria. Also questioned is the reasoning for removing the Industrial and Rural Center zone districts from the list of possible zone districts. Consideration was also given to whether or not theft is a problem with dispensaries. During deliberations, the ECPC considered recommending a minimum distance between dispensaries and opted against it. Concern for making medical marijuana businesses uses -by -right was expressed and eliminating Limited Review or Special Use Review was questioned by some. It was also expressed that the proposed number and amount of marijuana plants and marijuana product that may be grown in a residence proposed by staff is appropriate; although an increase up to 20 plants per residence may be acceptable. Ultimately the ECPC voted 6:1 recommending approval of the medical marijuana business regulations as presented by staff. The one dissenting Planning Commissioner stated that 56% of the voters in Eagle County does not constitute a mandate and believes that the people who voted do not realize that medical marijuana businesses could wind up next to their churches or closer to their homes. They recommend that the Special Use Permit process remain in place and that the 500 foot separation criterion be maintained. Further, 750 feet between medical marijuana businesses should be maintained and 6 to 20 plants per residence. Roaring Fork Valley Regional Planning Commission: At the public hearing conducted on May 19, 2011, the Roaring Fork Valley Regional Planning Commission unanimously approved the proposed regulations with the following conditions: 1) Continue to require Special Use Permit Review. 2) Maintain a 500 foot separation from schools only in El Jebel 3) Limit the size of medical marijuana businesses to 1000 square feet for the retail component and 4,500 square feet for the growing and production functions. 4) Maintain the amount of marijuana that may be grown in a residence to that proposed by staff. It must be noted that the conditions of approval recommended by the RFVRPC would necessitate to separate sets of regulations; one for the Eagle Valley and another for the Roaring Fork Valley El Jebel vicinity. It is also possible that the Board of County Commissioners can specify that no medical marijuana businesses are allowed in the El Jebel vicinity of Eagle County. Lastly, the Board could specify a county- 11 05/31/2011 wide requirement that a 500 foot separation be maintained from schools; excluding situations where Interstate -70 will provide a physical buffer and barrier between medical marijuana businesses and schools. 2. STAFF REPORT A. NECESSARY FINDINGS: PROCESS INTENT ECLUR Section: 5 -230 Amendments to the Text of These Land Use Regulations or Official Zone District Map Section Purpose: The purpose of this Section is to provide a means for changing the boundaries of the Official Zone District Map or any other map incorporated in these Regulations by reference, and for changing the text of these Land Use Regulations. It is not intended to relieve particular hardships, or to confer special privileges or rights on any person, but only to make necessary adjustments in light of changed conditions. Standards: Section 5 - 230.D. No change in zoning shall be allowed unless in the sole discretion of the Board of County Commissioners, the change is justified in that the advantages of the use requested substantially outweigh the disadvantages to the County and neighboring lands. In making such a determination, the Planning Commission and the Board of County Commissioners shall consider the application submittal requirements and standards. There are no specific standards directly applicable for changing the text of the Land Use Regulations. B. STAFF DISCUSSION: Pursuant to Chapter 1, Eagle County Land Use Regulations Section 1.15.04 Referrals, the proposed amendments have been referred to the appropriate agencies, including all municipalities within Eagle County; Pursuant to Chapter 1, Eagle County Land Use Regulations Section 1.15.05 Public Notice, Public notice has been given; Pursuant to Chapter 2, Eagle County Land Use Regulations Section 5 230.B.2 Text Amendment: a. The proposed amendments AMEND ONLY THE TEXT of Chapter 2, Article 2 and. Chapter 2, Article 5 of the Eagle County Land Use Regulations and do not amend the Official Zone District Map. b. Precise wording of the proposed changes has been provided (please see attached) Pursuant to Chapter 2, Eagle County Land Use Regulations Section 5- 230.D., Standards for the review of Amendments to the Text of the Land Use Regulations, as applicable. STANDARD: Consistency with the Comprehensive Plan. [Section 5- 230.D.1] Does the proposed amendment consider the purposes and intents of the Comprehensive Plan, all ancillary County adopted Specialty and Community Plan documents, and is it consistent with all relevant goals, policies, implementation strategies and Future Land Use Map designations including but not necessarily limited to the following: Section 3.2 General Development Policies a, c, e, i, g, h, i and k Section 3.3 Economic Resources Policies b, c, d, e, f, h, j, m and o Section 3.4 Housing Policies a, d, e, g and n Section 3.5 Infrastructure and Services Policies a, c, g, i j, k, m and o 12 05/31/2011 Section 3.6 Water Resources Policies a, b, c, d, e, f, g, h and i Section 3.7 Wildlife Resources Policies a, b, c, d, e, f and i Section 3.8 Sensitive Lands Policies a, c, e and g Section 3.9 Environmental Quality Policies a, c and d Section 3.10 Future Land Use Map Policy a Section 4 Adopted Area Community Plans All relevant goals, policies and FLUM designations Additionally, all relevant goals & policies of the following plans or such equivalent plans and/or future plans, which may be in effect at the time of application for zone change: Eagle County Open Space Plan Eagle River Watershed Plan Eagle Valley Regional Trails Plan Eagle County Trails Plan (Roaring Fork) Eagle County Comprehensive Housing Plan Eagle County Airport Sub -Area Master Plan Consistency with the Comprehensive Plan is not applicable. EXCEEDS MINIMUM STANDARDS MEETS MINIMUM STANDARDS MEETS THE MAJORITY OF MINIMUM STANDARDS DOES NOT MEET MINIMUM STANDARDS X NOT APPLICABLE STANDARD: Compatible with Surrounding Uses. [Section 5- 230.D.2J Does the proposal provide compatibility with the type, intensity, character and scale of existing and permissible land uses surrounding the subject property? Dimensional limitations of the proposed zone district, when applied, should result in development that will be harmonious with the physical character of existing neighborhood(s) surrounding the subject property. The issue of compatibility does not directly pertain to this regulatory amendment proposal. The resulting regulation; however will ensure compatibility between dissimilar land uses. EXCEEDS MINIMUM STANDARDS MEETS MINIMUM STANDARDS MEETS THE MAJORITY OF MINIMUM STANDARDS DOES NOT MEET MINIMUM STANDARDS X NOT APPLICABLE STANDARD: Public Benefit [Section 5- 230.D.3] Does the proposal address a demonstrated community need or otherwise result in one or more particular public benefits that offset the impacts of the proposed uses requested, including but not limited to: Affordable local resident housing; childcare facilities; multi - modal transportation, public recreational opportunities; infrastructure improvements; preservation of agriculture /sensitive lands. The proposed amendments will provide a public benefit by protecting both urban and non -urban development; conserving the value of property and encouraging the most appropriate use of land. The Regulations are further intended to protect the public health, safety, and welfare by regulating the location of activities and use of land on the basis of the impact thereof on the community or surrounding areas; and otherwise planning for and regulating the use of land so as to provide planned and orderly use of land and protection of the environment in a manner consistent with constitutional rights. EXCEEDS MINIMUM STANDARDS X MEETS MINIMUM STANDARDS 13 05/31/2011 MEETS THE MAJORITY OF MINIMUM STANDARDS DOES NOT MEET MINIMUM STANDARDS NOT APPLICABLE STANDARD: Change of Circumstances. [Section 5- 230.D.4] Does the proposal address or respond to a beneficial material change that has occurred to the immediate neighborhood or to the greater Eagle County community? Conditions have changed, necessitating the proposed regulatory amendment due to a sudden peaked interest in commercial cultivation and production of Medical Marijuana in the unincorporated lands of Eagle County. EXCEEDS MINIMUM STANDARDS X MEETS MINIMUM STANDARDS MEETS THE MAJORITY OF MINIMUM STANDARDS DOES NOT MEET MINIMUM STANDARDS NOT APPLICABLE STANDARD: Adequate Infrastructure. [Section 5- 230.D.5] Is the property subject to the proposal served by adequate roads, water, sewer and other public use facilities? This amendment will not result in the need for new infrastructure. EXCEEDS MINIMUM STANDARDS MEETS MINIMUM STANDARDS MEETS THE MAJORITY OF MINIMUM STANDARDS DOES NOT MEET MINIMUM STANDARDS X NOT APPLICABLE C. REFERRAL RESPONSES: • Eagle County Attorney's Office — The language set forth in the draft proposed regulatory language has been thoroughly vetted, reviewed and edited by the County's Attorney's Office. • Town of Basalt In the attached letter dated April 19, 2011, the Town offers the following comments: 1) The Town supported Eagle County's effort to regulate medical marijuana growing and dispensing in unincorporated Eagle County in 2010 to ensure that medical marijuana is manufactured, sold, and used in a manner that is safe, consistent with the intent of the regulations adopted by the State of Colorado, and that has minimal impacts. 2) The Town is concerned that the proposed amendments will significantly lessen the restrictions on medical marijuana cultivating and dispensing and encourage the development of more medical marijuana dispensing facilities in unincorporated areas around West Basalt and El Jebel. Specifically, the Town does not support reducing the distance from a public facility, public park, residential unit, licensed childcare facility, or school in which a medical marijuana business is prohibited. The Town would also recommend that Eagle County add municipal boundaries to the list of locations from which a medical marijuana business has to keep a certain distance. 3) The Town also supports maintaining Eagle County's regulations related to encouraging the dispensing of medical marijuana to occur in a medical center since medical marijuana was allowed at the state level on the basis that it was going to be used for legitimate medical purposes. The Town sees no better way for medical marijuana to be dispensed only for its intended purpose than to require the dispensing to occur in a medical center. As you are aware, the Town adopted regulations (attached) requiring that medical marijuana dispensaries only be located within a medical center that provides multiple professional health and medical services. In evaluating the effectiveness and appropriateness of the Town's regulations and Eagle County's initial regulations, 14 05/31/2011 the Town Planning and Zoning Commissioner indicated to Town Staff that they were happy with the approach that was taken. The Town is concerned that Eagle County' proposed loosening of the regulations might undermine the effectiveness of the regulations in terms of relegating medical marijuana use to the medical purpose for which it is intended under the state regulations. 4) The Town recommends that Eagle County consider amending the proposed language in Section 3- 330(2)(p) to require that medical marijuana businesses only be permitted in developments requiring approval through the Special Use process (such as mixed use developments) if they are expressly allowed through the special review approval similar to the proposed language related to medical marijuana businesses in PUD's. 5) The Town recommends that Eagle County not change the approval process for a Medical Marijuana Business from a Special Review to a Limited Review in the C/L and C/G Zone Districts. Even though the Town Planning Staff fords the Eagle County Planning Manager to be very thorough and competent, the Town feels that the Special Use Review process with a full public notice provides for a more effective review process by which to address issues related to proposed Medical Marijuana Businesses. 6) The Town supports the proposed amendment that would limit the number of medical marijuana plants and product that could be produced in any one residence. Additionally, the Town supports the proposed amendment that would require all medical marijuana businesses to meet all applicable building and fire codes. • Town of Vail - The Town has no significant input with regard to the specific proposal but questions the impact of reducing the distance requirement from 500 feet to 200 feet. Does this significantly increase the number of locations where these businesses can locate? Why the significant reduction? Currently, Vail leadership is ardent in prohibiting marijuana sales in Vail. We have come across some grow operations which have included several building code violations and in some cases significant hazards have been created through some creative electrical work. • RE - School District — Shannon Pelland, Assistant Superintendent for RE -1 School District has expressed concern for the reduction in separation from public schools and suggests that the county adhere to the 1000 foot separation from schools specified by the State of Colorado. Additional Referral Agencies - This proposal was referred to the following agencies: • Eagle County: Airport, Animal Services, Assessors, ECO Trails, ECO Transit, Engineering, Environmental Health, Housing, Road and Bridge, RE -50J School District, Sheriff's Office, Surveyor, Weed and Pest, Wildfire Mitigation Specialist, Historical Society • Town of Avon, Town of Eagle, Town ofMinturn, Town of Red Cl iff, Town of Vail • Braun Associates, Inc., Design Workshop, Isom and Associates, Knight Planning Services, Land Studio, Otak, Sid Fox and Co., • Alpine Engineering Arroyo Engineering, Benchmark Engineering, CTL Thompson, Gamba & Associates, High Country Engineering, HP Geotech, Intermountain Engineering Peak Land Consultants, Resource Engineering, Inc., Schmeuser Gordon Meyer, Sopris Engineering Archibeque Land Consulting, Backlund Land Surveys, Bookcliff Surveying, Eagle Valley Surveying, Eldridge Land Surveying, Gore Range Surveying, John Curran, J&K, Leland Lechner, Lines in Space, Marcin Engineering, River City Surveys, Starbuck Surveying. • State of Colorado: CDOT, Department of Local Affairs, Division of Minerals and Geology, Division of Water Resources, Forest Service, Geological Survey, Water Conservation Board, Historical Society, . • Federal: Bureau of Land Management, Natural Resource Conservation Service • U.S. Army Corp of Engineers • U.S. Forest Service • Fire Protection Districts: WECAD, Eagle County Health Service District, Basalt & Rural FPD, Gypsum FPD, Greater Eagle FPD, Eagle River FPD, • Special Districts: All • Mid Valley Trails Committee • Home Builder's Association • American Institute of Architects 15 05/31/2011 • Cattleman's Association • All Registered Home Owner's Associations and Design Review Boards Letter from Concerned Citizen: Please refer to the attached email of opposition from Buddy and Bonnie Simms dated December 15, 2010. D. BOARD OF COUNTY COMMISSIONERS OPTIONS: 1. Approve this ECLUR TEXT AMENDMENT request without conditions if it is determined that the petition will not adversely affect the public health, safety, and welfare and the proposed use is attuned with the immediately adjacent and nearby neighborhood properties and uses and the proposal is in compliance with both the Eagle County Land Use Regulations and with the guidelines of the Eagle County Comprehensive Plan (and/or other applicable master plans). 2. Deny this ECLUR TEXT AMENDMENT request if it is determined that the petition will adversely affect the public health, safety, and welfare and/or the proposed use is not attuned with the immediately adjacent and nearby neighborhood properties and uses and the proposal is not in compliance with both the Eagle County Land Use Regulations and with the guidelines of the Eagle County Comprehensive Plan (and/or other applicable master plans). 3. Table this ECLUR TEXT AMENDMENT request if additional information is required to fully evaluate the petition. Give specific direction to the petitioner and staff. 4. Approve this ECLUR TEXT AMENDMENT request with conditions and/or performance standards if it is determined that certain conditions and/or performance standards are necessary to ensure public, health, safety, and welfare and/or enhances the attunement of the use with the immediately adjacent and nearby neighborhood properties and uses and the proposal is in compliance with both the Eagle County Land Use Regulations and with the guidelines of the Eagle County Comprehensive Plan (and/or other applicable master plans). DISCUSSION: Mr. Narracci explained that board would be considering an amendment of the Eagle County Land Use Regulations to loosen up the regulations that were adopted in February of 2010. He presented some chronological background. The outcome of the vote last November 2 °d demonstrated that 56% were in favor of allowing this type of industry to continue in unincorporated Eagle County and the board indicated based on that vote that they intended to allow it to continue. Commissioner Runyon stated that the Clerk counted up the total number of votes per category and more votes were cast on the medical marijuana issue than the governor or any other issue by almost 800 votes. This was to say,it was the one issue that everyone had an opinion on. Mr. Narracci stated that the current regulations were perceived by some as being restrictive and exclusionary. None of the potential locations were in leasable or purchasable commercial space. The regulations were inconsistent with new state statutes in regards to terminology and definitions. In addition, the current regulations dealt only with where dispensaries could be located but were silent to cultivation activities as well as processing and preparation of medical marijuana infused food products. He presented the regulatory separation criteria. He presented the most current CCI map showing what other counties in Colorado were doing with this topic. He presented the Eagle County existing separation maps, which showed the areas with zoning of commercial general or commercial limited and the location of the current dispensaries. He presented a letter issued by the Attorney General of Colorado indicating that the Department of Justice would not focus its limited resource on seriously ill individuals who used medical marijuana as a part of a medically recommended treatment regimen but they did reserve the right to vigorously enforce federal law against all individuals and organizations that participated in unlawful manufacturing and distributing activity involving marijuana. In light of this 16 05/31/2011 correspondence and after consultation with the County Attorney it had been determined that the initially proposed limited review process would not accomplish anything for Eagle County other than tracking the number and locations of medical marijuana businesses. Since the determination had been made that medical marijuana would not be banned in Eagle County, the land use regulation as required by state statute would provide a zoning framework. This proposal was being amended to allow medical marijuana businesses as a use by right in commercial general and commercial limited zone districts only. He presented the draft regulations and explained the effect the amendment would have. Commissioner Fisher wondered if the county had any conversations with the property owners within these jurisdictions. Mr. Narracci stated that he had not as the county was not rezoning just modifying what commercial limited and commercial general could accommodate. The county attorney's office was involved in writing these draft regulations. He presented the referral responses from the Town of Basalt, Town of Vail, and RE -1 School District. The Planning Commission considered recommending minimum distance between dispensaries and then opted against it. Some of the commissioners expressed concerns about making medical marijuana a use by right. Ultimately, they voted 6 — 1 recommending approval of the medical marijuana of business regulations as presented by staff. Commissioner Runyon understood that by changing 500 to 200 ft. it would include some districts. He asked the reason for the amendment. Mr. Treu stated the main reason was direction from the board after the vote. There really wasn't any useable space that was available under the existing regulations. If not for the amendment there wouldn't be any new business allowed to open. Chairman Stavney opened public comment. Beth Ayers, spoke on behalf of Holistic Health Care that operated a dispensary in Edwards. She did not believe that the 117 acres in Edwards had much usable space. She wondered if anyone had considered the area by Subway on Edwards Village Blvd. Mr. Narracci stated that adding this area would require an amendment to the regulations as it was in a PUD. Mr. Treu stated that they excluded dispensaries in PUD's. Ms. Ayers added that she did not support setbacks between dispensaries. Ron Robbins, spoke on behalf of Herbal Elements and a group of caregivers. He spoke about the ability for people to cultivate in home and under constitutional amendment, which was a permissible right. He asked about the number of plants permitted in a residential grow. Mr. Narracci stated that State Statutes allowed 6 plants for each registered patient. Mr. Robbins recommended that the number be expanded to 36 plants. He spoke about HB -1284, which defined the primary caregivers' ability to provide for 5 people. Under the new house bill 1043, there were two new classes of licenses. He did not believe the 200 ft. limitation from lot line to lot line made good sense. He believed it should be from building to building. Mr. Treu believed it was building dispensary to lot line of the property. Mr. Robbins spoke about the people who had already invested in their business and were unable to relocate. They could only move to another licensed center. Mr. Treu stated that the license was for the premises not for the license holder. Mr. Robbins stated that his client had an 800 -page application in order to be licensed. His clients have not had any complaints of any sort by law enforcement or any kind. He spoke about the letter from the US Attorney General and that it encouraged counties to pass reasonable zoning regulations, minimal licensing regulations and not have case by case come before the board. Mr. Treu agreed with Mr. Robbins. He believed that the county's zoning regulations were so detailed that they were used as a model by a lot of counties. Mr. Robbins concluded that the voters had spoken on multiple occasions statewide and it was a constitutional right. The regulations should be reasonable and the limits for caregivers should be 36 plants. Tim Annascane spoke as a caregiver. He would like to see more dispensaries open up in areas that were easily accessible for people to get their medicine. He did not want - to see this type of business go underground. Chairman Stavney stated that it was not the intension of this board after the election to band existing and future dispensaries. He believed that the county had done a little bit of loosening and done its job not allowing this type of business to proliferate throughout the county. He expressed concern for the number of plants. 17 05/31/2011 Commissioner Fisher stated that she was challenged with overall that the county was changing its zoning so that the county did not have non - conforming uses. She wondered if the county was accommodating those who stepped up and took a chance. She expressed concerns for the safety of the growing operations. Mr. Robbins stated that the caregivers needed to be registered with the state and the people for which they were providing services must be registered with the state. Commissioner Fisher wondered if the county was identifying the unforeseen consequences to the greatest extent possible. She hoped that more people would have attended the meeting. Mr. Robbins stated that it was not required under state law to license the caregivers. It was just under state law to license the medical marijuana centers. Mr. Treu explained that the reason they come up with 6 plants was because the current regulations did not allow caregivers to grow in residences. The only person that was provided the constitutional right to grow was the patient. It was important to have a cap so the zone enforcement people can verify whether there were violations. Commissioner Fisher wondered what would happen if there were too many plants. Andy Jessen stated that there would be a 10 -day period to correct the issue. Mr. Robbins stated that he did not believe the caregiver would be subject to any kind of prosecution. Mr. Treu stated that the only time the county would know about illegal grow operations was when law enforcement informed the county. He explained that commercial grow operations were for the centers providing medical marijuana to be sold at the centers. Caregivers just grow enough for up to 5 patients. Commissioner Runyon stated that the county was not coming up with licensing program until the state came up with something. Mr. Treu stated that one could not get a state license until they have a local license. The county's preference was to keep its involvement very minimal having the state doing the background checks, etc. Mr. Robbins stated that caregivers must renew their registration annually. Cardholders must also renew annually and designate the caregiver if using a one. Commissioner Fisher asked if there was an ability to register caregivers through the county or Sheriff's Office. Mr. Treu stated that this was a possibility. This information was confidential for safety reasons. Commissioner Runyon suggested that the file be tabled to allow staff to rewrite the regulations addressing the number of plants. Chairman Stavney stated that unless the board believed there was a need for additional public input. He did not feel the need to table the file. He suggested approving the file and followed up by a resolution. Mr. Treu asked if the board would like staff to draft language that would allow the entire parcel to be included if the boundary line included more than 50% of a parcel. Commissioner Runyon believed that was appropriate. Chairman Stavney stated that he was fine with the building to lot line measurement. Mr. Treu believed it made sense to re -draft the regulations with a resolution and put it on the agenda at a later date. Commissioner Runyon moved to table file number LUR -3171 Medical Marijuana Industry Regulations until June 28, 2011. Commissioner Fisher recommended the motion. The vote was declared unanimous. There being no further business before the . • .dthe meetin . . as adjourned untt June 14, 2011. Attest: • �`L _ � " �° dbJ Clerk to the Board it C : n ' 18 05/31/2011