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Minutes 02/23/10 PUBLIC HEARING February 23, 2010 Present: Sara Fisher Peter Runyon Jon Stavney Keith Montag Bryan Treu Robert Morris Christina Hooper Teak Simonton Kathy Scriver Chairman Commissioner Commissioner County Manager County Attorney Deputy County Attorney Assistant County Attorney Clerk to the Board Deputy Clerk to the Board This being a scheduled Public Hearing, the following items were presented to the Board of County Commissioners for their consideration: District Judge R. Thomas Moorhead on Justice Center Remodel Judge R. Thomas Moorhead thanked the Board for their help in the renovation of the Justice Center. He reviewed the construction process stating that the first phase was complete and two more were in the process. He explained the history of the Justice Center building and the need for the expansion. He read a letter from John Dunn, a local attorney, commending the Board for leading the Justice Center expansion. He reiterated his thanks to the Board of County Commissioners. Chris Uhass added her thanks and spoke of the Probation Office and improvements to these offices. Commissioner Stavney stated the project was finished under budget. Commissioner Runyon added thanks and comments to the discussion. Chairman Fisher commented that she was not on the board when the approval for the expansion was made, but added her approval as a sitting Board member. She commended Tom Johnson and Rick Ullom for doing a phenomenal job. Consent Agenda Chairman Fisher stated the first item before the Board was the Consent Agenda as follows: A. Approval of bill paying for the week of February 22,2010 (subject to review by the Finance Director) Finance Department Representative B. Approval of the minutes of the Eagle County Board of Commissioners Meeting for January 26,2010 Teak Simonton, Clerk & Recorder c. Sixth Amendment to Sand and Gravel Mining Lease between Eagle County and Lafarge West, Inc. County Attorney's Office Representative Chairman Fisher asked the Attorney's Office if there were any changes to the Consent Agenda. Bryan Treu, County Attorney stated that Item C should be removed from the consent agenda. Commissioner Stavney moved to approve the Consent Agenda, Items A and B. Commissioner Runyon seconded the motion. The vote was declared unanimous. Commissioner Stavney stated that he was excited about Item C and asked Mr. Treu to explain the details. 1 02/23/2010 Bryan Treu spoke about the gravel under the current ball fields and the relocation of the ball fields and gravel mining agreement with Lafarge. He stated there were no taxpayer dollars for this project but the County would gain key improvements at the fields. Steve Russell, WECMRD, added his enthusiasm to this project. This would allow for a new level of recreation and improve recreational opportunities. He stated that the lighting system would be changed to reduce lighting and some of the existing lighting would be recycled. The cost of utilities would be reduced as a result of the change in lighting system. The changes in the turf would see benefits due to water usage reduction, pesticides reduction, maintenance savings, etc. and increased sales tax revenue for usage of the facility could result. Commissioner Runyon added that the existing ball fields were on an elevated plateau and the removal of gravel would make the whole area more usable in the future. Mr. Treu added that the money saved would be put back into WECMRD programs which ultimately benefit the kids. Commissioner Runyon moved to approve consent Item C. Commissioner Stavney seconded the motion. The vote was declared unanimous Resolution 2010-016 Authorizing the Clerk & Recorder to Conduct the August 10, 2010 Primary Election by Mail Teak Simonton, Clerk & Recorder, explained the posting for acceptance of comments and stated that comments in favor from the Republican Party and the co-chair of the Democratic Party. Harvie Branscomb, co- chair of the Democratic Party expressed opposition. Ms. Simonton spoke of the service centers at the three offices of the Clerk where ballots could be dropped off and replaced. Commissioner Runyon asked about affiliating the date of the elections. Ms. Simonton replied that all unaffiliated voters could choose to affiliate through 7 p.m. on Election Day. Chairman Fisher opened and closed public comment the floor to public comments. There were none. Chairman Fisher spoke of opposition by Mr. Branscomb to mail ballot elections and stated that this was a difference of opinion. She thanked Mr. Branscomb for his input albeit after the deadline. She stated her puzzlement on how the election could be manipulated as a result of conducting a mail ballot election. She thanked the Clerk's office for all their help, including Pat Magdziuk. Commissioner Stavney stated he shared some of Mr. Branscomb's concerns. Ms. Simonton encouraged anyone who had concerns was encouraged to visit the office anytime during the election process from testing to counting. She stated that 70% of the voters in the 2008 voted early or by mail in the November election; 63% by mail and 7% early. Commissioner Stavney moved to approve the resolution authorizing the Clerk and Recorder to conduct the August 10, 2010 primary election by mail. Commissioner Runyon seconded the motion. The vote was declared unanimous. Commissioner Runyon moved to adjourn as the Board of County Commissioners and re-convene as the Eagle County Housing Authority. Commissioner Stavney seconded the motion. The vote was declared unanimous. Eagle County Housing Authority Jill Klosterman, Housing & Development Ms. Klosterman spoke to the board about the approval ofthe management agreement for Golden Eagle Housing Corporation. She explained the various documents associated with this process. Mr. Treu asked if the first page needed to be signed and wondered who should sign the other documents. Ms. Klosterman explained which board member should sign. 2 02/23/2010 Commissioner Stavney asked about the feedback that had been received about the management structure. Ms. Klosterman stated that they changed the on-site property manager to Leona Perkins about 5 months ago. She had heard good comments about the transition and had not heard any complaints about Ms. Perkins or the Housing Department in general. Chairman Fisher stated that there was no dissatisfaction with Ms. Alexander related to the change in management. There was a regulatory agency that visited and reviews the facility once a year to allow for better management. There were also on-site members who could be part of the housing board. Suzanne Vitale was trying to build a stronger relationship with the seniors in the area. She knew there were times there are complaints when things change. The Board was trying to do its best to keep the seniors on the top of their list of priorities. Ms. Klosterman spoke about the management plan for Golden Eagle. She felt that things were going smoothly. Chairman Fisher stated that the senior housing had a requirement to allow those with disabilities to live there as well. She hoped the county could continue to support and grow the opportunities for seniors. 1. USDA Rural Development Rural Housing Service Identity of Interest Disclosure Qualification/Certificate 2. Management Agreement for Golden Eagle Elderly Housing Corporation 3. Multi-Family Project Borrower's/Management Agent's Management Certificate for Golden Eagle Elderly Housing Corporation 4. Management Plan for Golden Eagle Elderly Housing Corporation Commissioner Runyon moved to approve items 1-4 on the Eagle County Housing Authority Agenda and authorize Commissioner Stavney to execute the document. Commissioner Stavney seconded the motion. The vote was declared unanimous. Commissioner Runyon moved to adjourn as the Eagle County Housing Authority and re-convene as the Board of County Commissioners. Commissioner Stavney seconded the motion. The vote was declared unanimous. Citizen Input Chairman Fisher opened and closed citizen Input, as there was none. Commissioner Runyon will be speaking before the legislature to support membership of the entire 64 counties to form an interim committee to investigate ways to remedy abuses of the rules for agricultural exemption for property owners who were not ranchers and farmers. State of the County Address Sara Fisher, Chairman The State of the County Address began with a video produced by Scott Fifield and Josh Stowell ofthe County Communications Department. Chairman Fisher stated that when running for commissioner she thought how fortunate she would be if elected to have the opportunity to be part of managing an organization that she felt had all the requirements and necessities to be an exceptional organization. The challenge was that not only did she inherit the positive things she also inherited a long list of decisions made over the last 20 years. She decided to run without any desire other than to try to improve on what nature, God, and our forefathers had set out to do. She didn't believe it was a coincident she ended up in her position. She felt blessed because her role models had been spectacular individuals. She 3 02/23/2010 believed that communication, collaboration, and cooperation with one another made for good decisions. She spoke about the importance of growth management and preparing for the future. She spoke about the county housing issue and the current economic condition. She believed that the county needed to explore, research, communicate, and cooperate with the other entities in the valley to make the right choices. She recognized Keith Montag and Brian Treu for making challenging decisions in the last year and explained how the board relied heavily on them to make some tough countywide decisions. She spoke about the people that made the county strong. She spoke about her desire to wake up every morning trying to do the best that she could do. She spoke about the county's focus to return to basics. She spoke about the county's mission statement and believed that all the players should have the best intentions to be the best run county in the country. She believed that 2010 would be a tricky year but if everyone worked collectively and kept their minds focused on the outcome, we would have the ability to be exceptional. Commissioner Runyon read the names of the people recognized for their years of service. He believed it was appropriate to include this as part ofthe state of the county because the people were the heart of the county. Commissioner Stavney stated that the number of awards received by the various county departments astonished him. He appreciated the video and believed the people respected one for taking their job seriously. He read the 2009 awards and recognitions as presented in the 2009 annual report. Chairman Fisher stated that there was still a lot of work that needed to be done. When the board got together recently to talk about their vision for the future they created a hit list. This list included maintaining the county's world class status, dependency on the resort market, changing demographics, the economy of201O, demand for housing, county budget, economy part I and II, aging of the baby boomers, technology changes, bark beetle, mass transit, water, Latino population, health, public expectations, diversification, communication, and the environment, etc. She believed that every one of the items had an effect on our quality of life. She stressed the importance of open communication with the public. She stated that the board was committed to working collaboratively, communicating, and trying their best to bring the decision making to the people who had a stake in the decision. She thanked everyone for their hard work, open mindedness, efforts, having a heart, caring and continued support. She believed it was important to wake up with a good attitude everyday, to work hard for yourself and the people you care about. She thanked everyone for being a part of Eagle County and hoped everyone would be happy while their living. Planning Files LUR-2473 Medical Mariiuana Dispensaries Bob Narracci, Planning NOTE: Tabled from 12/08/09 ACTION: New Land Use Regulations intended to define Medical Marijuana Dispensaries and where they may be located within unincorporated Eagle County. LOCATION: Unincorporated Eagle County FILE NO./PROCESS: PROJECT NAME: OWNER: APPLICANT: LUR-2473 / Land Use Regulation Amendments Medical Marijuana Dispensary Regulations Not Applicable Eagle County 1. PROJECT DESCRIPTION A. SUMMARY: Colorado's constitutional amendment authorizing the medical use of marijuana for persons suffering from debilitating medical conditions (the "medical marijuana law") provides an exception for the state's criminal laws for any patient or primary care-giver to engage or assist in the medical use of marijuana. A primary care-giver is defined as a person designated by the patient, other than the patient and the patient's physician, who has a significant responsibility for managing the well-being of a patient who has a debilitating medical condition. 4 02/23/2010 A copy of Article XVIII. Sub Section 14. Medical use of marijuana for person suffering from debilitating medical conditions is attached. The Colorado Department of Public Health and Environment ("CDPHE") promulgated regulations in support of the medical marijuana laws and ruled that a primary care-giver's significant responsibilities can be limited to the simple act of providing medical marijuana to a patient. The CDPHE also recently ruled that there is no limit to the number of patients a single care-giver can serve. These rulings have lead to the onslaught of medical marijuana dispensaries opening in the County over the past several months. In any event, it appears that both patients and primary care-givers are required to obtain registry cards from the Colorado Department of Public Health and Environment prior to engaging in the medical use of marijuana. Registry cards are authorized only after a diagnosis of the patient's debilitating medical condition by a physician. The medical use of marijuana is defined broadly; it includes the acquisition, possession, production, use, or transportation of marijuana or paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient's debilitating medical condition. Thus, a primary care-giver clearly may grow marijuana for medical use. However, a single patient and that person's primary care-giver may collectively possess only the amount of marijuana as is medically necessary to address a debilitating condition, with the following limits: · No more than two ounces of a usable form of marijuana (which is defined as the seeds, leaves, buds, and flowers of the cannabis plant, excluding the plant's stalks, stems and roots); and · No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana. Since there is no limit on the number of patients a primary care-giver may serve, it stands to reason that it will be close to impossible to actually monitor how much medical marijuana a primary care-giver may possess at a given time. However, if in fact a primary care-giver must hold a registry card for each patient served, at least law enforcement will be able to determine the upper limit on the number of plants or ounces of usable marijuana that may lawfully be possessed or in production. There is nothing in either the medical marijuana law or regulations allowing a primary care-giver to contract with a third party for the production or manufacture or medical marijuana. Rather, only patients or the person designated as the primary care-giver may legally acquire, possess, produce, or transport medical marijuana. The medical marijuana law is also clear that a primary care-giver must be a person, and not a corporation, partnership or other company. Statewide, many towns and cities have implemented rules for dispensaries and the State is currently considering whether and how to legislate. Locally, each of the seven municipalities within Eagle County have taken the following actions: Town of Avon has implemented a 200 day moratorium effective as of January 12, 2010 (ordinance attached); the Town of Basalt has adopted ordinances (see referral response below and attached); the Town of Eagle has adopted regulations that require special use permit review in the Town's Commercial General zone district, each marijuana dispensary applicant must demonstrate a need for the facility; the Town of Gypsum does not intend to allow dispensaries within its municipal boundaries (see referral response below and attached); similar to the Town of Gypsum, the Town ofMintum likewise will not issue business licenses to Medical Marijuana proprietors because marijuana is not legal at the federal level; the Town of Red Cliff has approved one dispensary, and; the Town of Vail has implemented a 180-day moratorium effective until mid June 2010. As previously stated, Eagle County is experiencing numerous inquiries regarding the establishment of Medical Marijuana Dispensaries within the unincorporated regions of the County and, indeed, several such establishments are already in operation. The Eagle County Land Use Regulations are designed to promote the health, safety, convenience, order, prosperity, and welfare of the present and future inhabitants of Eagle County 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 5 02/23/2010 regulating the use ofland so as to provide planned and orderly use ofland and protection of the environment in a manner consistent with constitutional rights. Presently; however, the Eagle County Land Use Regulations do not specifically address Medical Marijuana Dispensaries. The County finds that it is essential to protect and preserve the environment and the public health, welfare and safety ofthe County and its citizenry, that it is in the County's best interest, and that it is consistent with the Land Use Act and the County Planning Code to study the potential impact of certain uses, including Medical Marijuana Dispensaries, and development within the County. The only aspect that the County can regulate is the matter of where and when medical marijuana may be dispensed by qualified care-givers, pending anticipated state regulation of the entire subject. As such, it is proposed to amend Chapter 2, Article 2, Definitions and Article 3, Zone Districts of the Eagle County Land Use Regulations as follows, all accompanying maps are attached to this staff report: (The below draft language incorporates all planning commission recommendations.) Article 2. Definitions The following words shall have the following meanings when used in these Regulations. MEDICAL MARIJUANA DISPENSARYmeans and includes the use of any property or structure to distribute, transmit, give, dispense, or otherwise provide marijuana in any manner, in accordance with Section 14, of Article XVIII of the Colorado Constitution and other applicable laws and regulations of the State of Colorado.. Article 3. Zone Districts I. Medical Marijuana Dispensaries. 1. Location. Medical Marijuana Dispensaries shall meet the following location requirements at time of their establishment: a. Medical Marijuana Dispensaries are prohibitedfrom locating within 500feet of (1) Any residence, (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 l. The 500 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 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.. ii. Exceptionfrom the 500 foot separation delineated in the previous paragraph may be considered if the Medical Marijuana Dispensary is located within a Medical Center or Medical Clinic. For the purposes of this Section, these terms are defined as follows: 6 02/23/2010 (1) Medical Center means afacility where multiple professional health and medical services are provided such as general medical practice, chiropractic, psychological, nutritional advice, physical therapy, and where the focus is providing both diagnostic and treatment. A medical center must contain at least three of these types of practices and there must be at least six licensed professionals. A medical center must contain at least 5,000 square feet of contiguous floor area. (2) Medical Clinic means a professional business providing general or special medical, chiropractic, psychological services employing three (3) or more physicians. For purposes of these regulations, physician shall be defined as it is defined by Section 14 of Article XVIII of the Colorado Constitution and any Colorado Department of Health and Environment Regulation as may now exist or may in the future be adopted or amended. There are no limitations on the number of physicians and there is no maximum size limitation. Clinics may specialize in one discipline or may include more than one type of medical service. d. Medical Marijuana Dispensaries located within a Medical Center or Medical Clinic shall maintain a minimum 200 foot separation from: (1) Any residence; (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 e. The 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 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.. f Medical Marijuana Dispensaries shall not be allowed within a moveable, mobile or temporary structure. Deliveries of medical marijuana products may be delivered only by properly registered medical marijuana Primary Care-givers to properly registered medical marijuana Patients at the Patient's primary residence. g. Medical Marijuana 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. h. School Defined. For purpose of this section, "school" means any private or public educational institution including, but not limited to, pre-schools, kindergartens, elementary, middle and high schools, colleges and universities. i. Medical Marijuana Patient Defined. 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. j. Medical Marijuana Primary Care-giver Defined. A person, other than the patient and the 7 02/23/2010 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 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. 2. Requirements. All medical marijuana dispensary facilities 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 dispensary is prohibited. d) The sale or consumption of alcohol on the dispensary premises is prohibited. e) The premises are equipped with a proper ventilation system so that odors are filtered and do not materially interfere with adjoining businesses. j) All transactions shall occur indoors and out of view from the outside of the building. g) Exterior signage on a medical marijuana dispensary may indicate that marijuana may be in the store; however, all exterior signage shall be approved through the Special Use Permit process and must comply with Chapter 2, Article 4, Division 4-3., Sif!n Regulations of these land use regulations. h) A medical marijuana 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 3-330.1.1.a and Section 3-330.I1.d, above. i) Each medical marijuana dispensary shall be operatedfrom afixed location. No medical marijuana dispensary shall be permitted to operate from a moveable, mobile or transitory location. j) A medical marijuana 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 dispensary may be open seven days a week. k) There shall be posted in a conspicuous location in each medical marijuana 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 dispensary is prohibited by state law; and (4) A warning that possession and distribution of marijuana is a violation of federal law. 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: · Tally the total acreage (square footage) in unincorporated Eagle County of all commercial and industrial zoned areas and of that total, how much acreage (square footage) falls outside of the 500 foot separation criteria (or 200 feet in the case of medical facilities). · Provide new maps reflecting the revised separation criteria. · Add Lodging, Retirement Homes, and Elderly Care Facilities to the separation criteria list. 8 02/23/2010 · Do the separation criteria apply to churches in temporary locations? · What about the processing and sale of marijuana-laced food products? · What other types of medical uses are State licensed? · How many card carriers are there in Eagle County? · Existing Medical Marijuana Dispensaries must comply with the new permanent regulations. · Tighten-up home delivery language. Who can legally make home deliveries? · Reevaluate inclusion of the Industrial Zone District as a potential location for Medical Marijuana Dispensaries. · Modify the draft regulations to require that the separation criteria be measured from the actual location of the Medical Marijuana Dispensary in a direct line to the closest point on the lot or parcel of land where an identified dissimilar use is situated. · Add in a potential decrease in the separation criteria to 200 feet when the Medical Marijuana Dispensary is located within a legitimate medical facility. Strengthen the Temporary Regulations to reflect the direction of the draft permanent regulations. Following their second hearing on January 20th, 2010, the Eagle County Planning Commission edited the draft language and then recommended approval of the proposed regulations by a vote of 6: 1. The one dissenting planning commissioner is of the opinion that the sensitive land use separation criteria, as currently proposed, are overly onerous and effectively zone medical marijuana dispensaries out of the county. Roaring Fork Valley Regional Planning Commission: . State needs to properly regulate the medical marijuana industry similar to liquor licenses. How will the county deal with existing non-conforming Medical Marijuana Dispensaries? What is the separation requirement for liquor stores? This use should not be singled out and should be consistent with liquor stores. Why do Medical Marijuana Dispensary activities have to be concealed from public view? Don't zone this use out of the county. Why can't the county regulate odors emanating from other uses such as bakeries and gas stations, etc.? Drug companies have carte blanche FDA approval to advertise and promote dangerous prescription drugs. Agrees with ECPC's recommendation to strengthen the Temporary Regulations to reflect the direction of the draft permanent regulations. Asked to be provided a copy of the Liquor License criteria, as well as, the Adult Entertainment criteria. Reevaluate inclusion of the Industrial Zone District as a potential location for Medical Marijuana Dispensaries. Concern was expressed regarding signage on mobile delivery vehicles. . . . . . . . . . . Following their second hearing on January 21 S\ 2010, the Roaring Fork Valley Regional Planning Commission edited the draft language and then unanimously recommended approval of the draft regulations. 2. ST AFF REPORT A. NECESSARY FINDINGS: PROCESS INTENT ECLUR Section: 5-230 Amendments to the Text of These Land Use Regulations or Zone District Map Official 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 9 02/23/2010 Standards: 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. 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.l] 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: Policies a, c, e, f, g, h, i and k Policies b, c, d, e, f, h, j, m and 0 Policies a, d, e, g and n Policies a, c, g, i, j, k, m and 0 Policies a, b, c, d, e, f, g, hand i Policies a, b, c, d, e, f and i Policies a, c, e and g Policies a, c and d Policy a 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: Section 3.2 Section 3.3 Section 3.4 Section 3.5 Section 3.6 Section 3.7 Section 3.8 Section 3.9 Section 3.10 Section 4 General Development Economic Resources Housin2 Infrastructure and Services Water Resources Wildlife Resources Sensitive Lands Environmental Quality Future Land Use Map Adopted Area Community Plans 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 10 02/23/2010 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 Sun-ounding Uses. [Section 5-230.D.2} 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 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 by Medical Marijuana Dispensary business operators to proliferate in the unincorporated lands of Eagle County. ~ EXCEEDS MINIMUM STANDARDS X MEETS MINIMUM STANDARDS MEETS THE MAJORITY OF MINIMUM STANDARDS DOES NOT MEET MINIMUM STANDARDSb 11 02/23/2010 D 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 B. REFERRAL RESPONSES: . Ea2le 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. . Ea21e County En2ineerin2 Department - In the attached memorandum dated October 20,2009, no comments are offered. . Ea2le County Department of Environmental Health - In the attached e-mail dated October 28, 2009 the following questions and comments were provided: o How do we keep track of them once the SUP is approved? Will some sort of renewal condition be attached to approved SUP's? o Does requirement I) 2) i) mean that they can't make mobile deliveries, or just that the business needs afixed location? o Aside from the regulations, with the half dozen or so that are out there already, I still just want to keep everyone thinking about how we best keep track of those, to either legitimize them or move them elsewhere as soon as practicable. I vaguely recall from a long ago land use discussion the possibility of putting a clock on specific non-conforming uses, basically letting them know they have a certain amount of time to move on. Another option for the ones that meet the distance requirements is perhaps to offer some incentive to come in and go through the SUP process - somehow make it a win-win for them. . Greater Ea21e Fire Protection District In the attached e-mail dated October 8, 2009 the following questions and comments were provided: o Why when pharmacy, medical & dental clinics, even private clubs are not allowed in Industrial zoned areas Medical Marijuana Dispensaries are proposed to be allowed via special review? o These facilities are not like bars or taverns are they? o Are these uses more like pharmacies and not liquor stores? They should be treated like pharmacies. o Should not be in residential areas or near schools. o From a fire safety perspective, security and the medical condition of the users requiring emergency response is of concern. . Town of Basalt In the attached letter dated November 9,2009, the Town indicates no objection to the proposed regulatory language regarding medical marijuana dispensaries. The Town further recommends that the regulations address the growing of medical marijuana and its conversion into useable products. The Town provided a copy of the Town's recently adopted zoning regulations addressing the operation of medical marijuana facilities which are attached. The Town restricted these uses to locating within medical centers that provide multiple professional health and medical services. The Town adopted a separate ordinance addressing licensing requirements for medical marijuana 12 02/23/2010 facilities and is currently considering adoption of another ordinance to decriminalize medical marijuana under specific circumstances for those authorized to have it in their possession. . Town of Gypsum - In the attached letter dated October 23,2009, the Town offers the following comments, "That while state laws allow these facilities (without any guidance or regulations) distribution, possession and use of marijuana still violates federal law. What if a different federal administration decides to enforce these federal laws? Eagle County business owners could quickly become felons. We do not feel that Eagle County should allow these establishments. Should you still decide that it is necessary to allow these businesses that participate in illegal activities we feel the items listed below need to be implemented: 1) The Town's adult entertainment regulations prohibit these establishments within 2,640 feet (1/2 mile) from schools, churches, daycares and residential units. We would like the same consideration and distance placed as requirements for any dispensaries considered near Gypsum. 2) We request that Eagle County require background checks as is required for liquor licenses. State law is silent on this so we believe that Eagle County would be within its right to do so. 3) Premises should be video monitored at all times by store owner. 4) Dispensaries should be subject to law enforcement visits by local, state and federal agencies as is allowed for liquor establishments. The Town will not be issuing any business licenses for dispensaries because our business license criteria require businesses to comply with all local, state and federal laws. Since they do not comply with federal laws they will not be issued. We would appreciate Eagle County taking into consideration our views on this issue as they will directly impact our community as wel.1". Additional Referral Agencies - This proposal was referred to the following agencies: . Eagle County: Airport, Animal Services, Assessors, ECO Trails, ECO Transit, 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 of Minturn, Town of Red Cliff, 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 . Us. Army Corp of Engineers . Us. 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 . Cattleman's Association . All Registered Home Owner's Associations and Design Review Boards 13 02/23/2010 To date, 24 letters and e-mails of opposition and concern regarding Medical Marijuana Dispensaries in Eagle County have been received. One letter of support has also been received. All correspondence is attached. C. SUMMARY ANALYSIS: Benefits/Disadvantages Benefits: · Protection of both urban and non-urban development; conserving the value of property and encouraging the most appropriate use ofland. Protection of the public's 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 ofland and protection of the environment in a manner consistent with constitutional rights. Disadvantages: · Additional code enforcement resources will be spent enforcing these Medical Marijuana Dispensary Regulations. 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 ECL UR 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: Commissioner Stavney explained the history of this file. Bob Narracci presented the file. Bryan Treu, County Attorney spoke. He explained that the Planning Commission liked his presentation to CCI (Colorado Counties, Inc.) and he presented it to those present. He explained that zoning consistently was a good approach. There was a history of zoning untoward uses effectively including arcades, pool halls, liquor establishments, etc. He referred to a letter written by the Los Angeles police chief. During a period of two years, there were increases in Medical Marijuana dispensaries and associated increases in crime. He also spoke about 14 02/23/2010 advertisements in publications related to these types of dispensaries. He reviewed some of the laws and rules. The onslaught of dispensaries was due to the CDPHE (Colorado Department of Public Health and Environment) recent drafted regulations for the ip.dustry. There was a current court case, which would also have impact on these types of businesses. Currently, dispensaries were legitimate businesses in Colorado and the board would have to treat it as such. He reviewed some of the legislative history and pending legislation. There was a law enforcement bill that would significantly limit these businesses from being viable. Counties were not independent entities, but rather an arm of the state. The CDPHE had been given the authority to regulate medical marijuana. Counties could regulate transportation of ashes, escort services, second hand dealers, door to door salesman, nude entertainment, liquor licenses and some others. Counties could zone business types. It was not for the board to decide if medical marijuana was good or bad. This was a property right and could not be excluded through zoning. He spoke about the differences between state and federal law. Towns could do things the county could not. Unincorporated counties could not require business licenses. He stated that staff looked at other types of business zoning requirements, including distance requirements, choice of dispersal or concentration, legal non-conforming uses, aesthetics and preservation of the quality of community, limit the size and character of storefront displays and signs, and / or restrictions on operating hours. There must be objective standards. He spoke about Eagle County's efforts to date. They looked at defensible comparisons, fully explained the limits, built record accordingly, instituted temporary regulations versus moratoriums, written clear definitions, maps and good GIS data, a 500 foot limit to schools and residential areas. Bob Narracci spoke to the board and provided background and history of the zoning issue. He provided information on what the county municipalities were doing with these types of businesses. He presented the proposed regulatory language. Commissioner Stavney asked about the definition of a medical center or clinic and whether they were established or new. Mr. Narracci stated that the Attorney's Office had reviewed the definition. Commissioner Stavney asked about the requirements and whether they were over-reaching. Mr. Treu responded that the medical use was defined very broadly, so some of the requirements were a statement ofthe law, but some of the requirements may be over-reaching. Mr. Narracci presented the proposed regulatory language detailed above in the staff report. He showed existing dispensary locations. Commissioner Stavney asked about the map and whether or not people understood the delineations. He reviewed the map for those present. Mr. Narracci showed the potential locations throughout the county where dispensaries could be located. There were no areas in El Jebel or Basalt for these dispensaries. Chairman Fisher explained that the Edwards area did not have any locations in which new businesses could operate based on the proposed distance criteria. Mr. Narracci stated there would be a total of about 84 acres. He shared some referral responses, many of which were from county municipalities. Each planning commission held two hearings. The Eagle County Planning Commission recommended and Roaring Fork Regional Planning commission unanimously recommended approval of the regulations. Mr. Narracci spoke about benefits and disadvantages. He also presented the Board's options related to the regulatory language. Commissioner Stavney opened public comment. He asked that comments be directed towards the regulations only, and not the use of medical marijuana. Commissioner Stavney asked about a special use permit option. Mr. Treu indicated this would be a possibility. Commissioner Stavney asked about PUD development and wondered how this type of use would be addressed. Mr. Treu stated that it was not allowed in an existing PUD. Anne Nicole from Avon spoke to the board. She spoke about caregivers and contracting to others to grow marijuana. She stated that it would prevent a caregiver from going into business for 90 days. A dispensary would have to open their business and would not be able to sell anything for 90 days. The regulations would also prevent a co-op. She suggested this was difficult for a new business. 15 02/23/2010 John Lincoln spoke to the board, from Eagle Vail. He wondered if Ms. Nicole was speaking about a dispensary or caregiver and if they were interchangeable. Mr. Treu spoke about the difference between caregiver and dispensary. He didn't see anything that addressed where the product is obtained. There were temporary growing regulations and the state was also dealing with this issue. The issue of growing was not addressed in these land regulations. Ms. Nicole wondered where a dispensary could get their product. Commissioner Stavney stated that her concerns were not addressed in these regulations. Greg Honnen, Eagle Vail resident spoke. He wondered how the laws proposed would align with liquor store laws. He wondered why medical marijuana was more restricted in terms of location compared to pharmacies. Commissioner Stavney stated that the board did not have regulatory powers over pharmacies. Mr. Treu stated that the board did look at liquor license regulations and tried to model these regulations appropriately. Greg Honnen wondered about the rationale for making medical marijuana more stringent. Mr. Treu stated that the rules and regulations for liquor stores were different and the needs of the neighborhood needed to be considered. Mr Honnen stated that he didn't understand why there would be no locations allowed in Edwards. Mr. Treu stated that the needs and desires of the neighborhoods could not be considered with medical marijuana dispensaries so, the Board and Planning Commission have to consider other businesses and where do these types of business belong where they could peacefully coexist with the other uses. Mr Honnen did not like the residence distance requirements. He wondered why the difference. Commissioner Stavney stated that they only way to regulate this type of business is through zoning. Mr Honnen wondered if this was an attempt to keep these businesses out of the county. Mr. Treu stated that the intent was to find legitimate locations for these businesses. Mr Honnen asked how any of this benefits the patient. Commissioner Stavney stated that the patients have many options at this time. Mr Honnen wondered what would happen if an existing business failed how a new business could open and serve needy patients. Pat Boltemeier, Edward's resident and five year patient spoke in opposition to the regulations and suggested that these operations be allowed to be closer to residential areas. He wondered if private residences could sell, distribute, and transport marijuana. He wondered what the definition of dispensary was. Commissioner Stavney stated that the board was not interested in promoting home sales. Mr. Boltemeier stated that the medical marijuana could be sold outside of a business location. He stated that the issue could be pushed under the table or the county could be part of the equation. He believed this approach was regressive. Mike Lederhause spoke to the board as a resident of McCoy. He asked about the growing of marijuana. Commissioner Stavney stated there were temporary regulations in place. Mr. Treu stated that these regulations would be coming. Mr. Lederhause expressed concern about growing marijuana on the Colorado River Road. He spoke about impaired drivers using Highway 131. He wished the drug could be dispensed at a pharmacy rather than dispensaries. He agreed with Gypsum's idea of requiring a 5000-foot limit. Jalaine Wahlert, Burns resident spoke. She asked about the rural zone district. Mr. Narracci stated that the zone was intended to provide basic commercial uses in rural areas. Ms. Wahlert asked about reducing the 500-foot limit to 200. Mr. Treu indicated that the only way this would change was by being included in a medical center. Chairman Fisher stated that the county was in a tough position. She has fought for the county to have the right to require business licenses. Businesses can function for more than two months before the county understood that they exist. Part of the challenge in this situation was that they were trying to enact sensible solutions. Trying to figure out a manageable solution was to everyone's interest. There were larger discussions continuing at the state capital. Sandy Skiles, Burns resident spoke. She was confused about whether everyone was looking at medical marijuana as a drug or a recreational medicine. She spoke about liquor stores being recreational businesses. She believed liquor was very different and wondered where medical marijuana fit in. Commissioner Stavney stated that according to the voters it is a medicine. The legislature had not defined it further, and the federal government won't since it's illegal. There was some wisdom to wait and see how well it gets defined. The board didn't feel like totally restricting the types of business was a reasonable option. 16 02/23/2010 Ms. Skiles spoke about dispensaries across the country and the associated increases in crime rates. Mr. Treu stated that most of the Sheriff's throughout the state wish to have these businesses located in one or two locations throughout the county. Commissioner Stavney stated that if it was better defined there could be a medical marijuana zone district, which could open up another can of worms. Bruce Dunsdon spoke to the board as Pastor of the Burns and Eagle Baptist Church. He wondered if there was anywhere in Bums that would allow this type of business. Mr. Narracci stated that there is no area in Bums under these regulations. The only option would be re- zomng. Mr. Dunsdon spoke about narrow and unpaved roads and his concern for the delay in law enforcement. Ms. Nicole spoke about the recent article, which indicated that crime reports for medical marijuana dispensaries was less than that associated with liquor stores. Greg Honnen asked about the current law and legalities for growing marijuana. Mr. Treu stated that the only people who could grow currently were primary caregivers and patients. Commissioner Stavney stated that the county did not have any more restrictive regulations than the state at this point. Mr. Treu stated that it marijuana could not be grown in a residence. If a patient wanted to grow it in their home, the county would not get involved but no one could grow it for others in their home unless they were a caregiver licensed for patients. He related it to any other home business. Very few zone districts allow home businesses. Pat Boltemeier wondered about the definition of private versus public. The amendment says the patients have to carry out their business in private. Commissioner Stavney suggested that board would not be addressing growing regulations related to these issues. Commissioner Stavney closed public input. Chairman Fisher stated that this was difficult. Trying to create regulations for something with so many unknowns and in which there was a clash between federal law and the needs of individuals. She voted for it but thought it would be different from what it was turning out to be. She encouraged everyone present to share their points of view with their legislators. Commissioner Stavney asked for comment about rural centers being unprepared for what could come. He would welcome the exclusion of rural centers. He also suggested it was worth clarifying that dispensaries were non-residential dispensaries. Part of the point was to not have these in residential neighborhoods, so perhaps a more direct approach should be considered. Mr. Treu stated that this was included under item G and would not be allowed as a home business. Commissioner Stavney stated that while looking at the maps he did not have the same concern about separating residential in mixed-use projects like Eagle-Vail. He welcomed some review of this concept. Mr. Narracci asked Ms. Keeley to show a map with this new overlay. The new layer allowed this type of use in the Eagle-Vail commercial areas. Commissioner Stavney saw this as a work in progress. Mr. Treu indicated that the board could impose a distance requirement between the dispensaries themselves. Chairman Fisher wondered about approving the regulations and then modifying them at a later date. Commissioner Stavney was not in favor of opening it up to the entire Eagle-Vail Commercial area due to the current review of the Eagle-Vail Area master plan. Chairman Fisher spoke about waiting for the legislative session to end to determine what additional laws would be in place. She did not want to encourage the choice that business people could take by suggesting anything goes in Eagle County. Commissioner Stavney spoke about option 4. He wondered about the performance standard and what the intention was. Mr. Treu stated there were some edits possible. 17 02/23/2010 Chairman Fisher moved to approve LUR-2473 Medical Marijuana Dispensaries land use regulation amendments with the amendment recommended by Mr. Treu in article F, not allowing dispensaries to be allowed within a movable, mobile, or temporary structure. Only properly registered medical marijuana primary caregivers may deliver deliveries of medical marijuana products to properly registered patients. Commissioner Stavney seconded the motion. Of the two voting Commissioners, the vote was declared unanImous. Attest: anD- Q ~V-_ Chairman 18 02/23/2010