SAN MIGUEL COUNTY – The San Miguel County Commissioners last week directed staff to process development applications for two commercial medical marijuana grow operations in unincorporated areas of the county, while the fate of two more remains unclear.
The move came as the county grapples with developing an interim policy to regulate applications it has received for “optional premises cultivation operations” in the wake of the passage of the Colorado Medical Marijuana Code by the Colorado General Assembly in June.
“It has been challenging, how to come up with a fair and reasonable policy on medical cannabis,” County Planning Director Mike Rozycki told the commissioners.
Much of the confusion comes from the new law itself, which requires local and state licensing approval of medical marijuana-related facilities. But local jurisdictions have yet to develop their requirements and have until July 2011 to do so. At the same time the state has not put its own rules in place, leaving uncertainty over how to deal with immediate issues at hand.
Because the county does not yet have any land use codes or other regulations specific to the medical marijuana industry in place, the B.O.C.C. in April enacted a temporary emergency moratorium on businesses selling or distributing medical marijuana to the public in the county’s unincorporated areas. The purpose of the moratorium was to allow the county time to determine the effect of the state law that was pending at the time.
In June the county granted exceptions to its moratorium to Delilah L.L.C. for on-site cultivation and sales of medical marijuana in the Ilium Industrial Park, and to C&C L.L.C. for the sale of medical marijuana in a small retail store offering arts, crafts and alternative health remedies on Front Street in Placerville. Both were located in zone districts considered appropriate for their proposed activities and so deemed consistent with the county Land Use Code.
But the language contained in the temporary moratorium did not specifically address those who might be growing or cultivating medical marijuana. The county assumed small growers would be licensed by the Colorado Department of Public Health and Environment to cultivate a limited number of plants for their personal use, or as caregivers growing a limited number of plants for a limited number of patients.
In fact, the C.M.M.C. actually required businesses seeking state licensing to certify that they were cultivating at least 70 percent of the medical marijuana necessary for their operations on or before September 1 of this year.
As a result, many local medical marijuana dispensaries – or medical marijuana centers as they are now called in the state law – were sent scrambling to find suitable locations for off-site cultivation operations in order to be compliant.
Of three new grow facility applications and one application supplement filed with the county, one is on track for approval in the low intensity industrial-zoned Ilium Industrial Park, where commercial growing nurseries and greenhouses are already allowed uses, and Delilah LLC has already been permitted.
The lots there have the additional benefits of being relatively close to the County Sheriff’s Office, a significant plus for a policy that attempts to strike a balance between the needs of the applicants while at the same time protecting the surrounding areas (where law enforcement response time can be slow) from a potential epidemic of lawlessness spurred on by the unprecedented value of the crop.
Nor are schools, public uses and residential uses except for dormitory style housing for “transient workers” allowed in the Ilium Industrial Park, according to a memo from Rozycki to the commissioners.
“That one is clearly appropriate at this point in time,” said BOCC Chair Art Goodtimes.
“It seems like a logical spot for them in my mind,” agreed San Miguel County Sheriff Bill Masters.
Similarly C&C, which is seeking to supplement its previous application in order to add a small cultivation operation to its retail business, is also on track for approval of its optional premises cultivation operation in a nearby structure.
While the location is not as near to a law enforcement presence as the Ilium location, “I went through the neighborhood commercial uses,” Rozycki told the commissioners and, “It seemed that it may be a reasonable ancillary use.”
But whether a stand-alone grow operation in 2,500 square feet of an existing building also on Front Street in Placerville ultimately passes muster is uncertain.
While the proposed C&C facility would act as an accessory to an existing retail business serving the Placerville community with goods in addition to medical marijuana, the sole purpose of the standalone operation would be to supply a medical marijuana center in Telluride.
Although the Placerville Commercial Zone District allows certain uses including small manufacturing operations and trade businesses subject to a one-step planning commission review and the commissioners could potentially allow the applicant to apply for a special use permit for the facility, “I don’t think a stand-alone Commercial Cannabis Grow Facility that does not provide goods to local Placerville residents is consistent with the intent of the P.C. Zone District,” Rozycki wrote.
Not to mention that there is a glaring conflict between the county’s existing land use approval process and the new state law.
The L.U.C. requires a public process that would give neighboring landholders to proposed grow facilities the right to comment on them, while the state law requires that the location of the operations remain confidential and exempts them from the Colorado Open Records Act.
The fourth and final application being considered by the county at this time is for a facility that is located on a 17-acre parcel on Wright’s Mesa in the Single-Family Residential Zone District that is supplying a medical marijuana center in Telluride.
The zoning allows single-family residences and accessory uses but does not specifically list agricultural uses or home occupations as allowed uses. That said, the Planning Department has for some time allowed agricultural uses as accessory uses in the residential zone districts on Wright’s Mesa, according to Rozycki’s memo.
The applicant began growing medical marijuana as a primary caregiver licensed by the C.D.P.H.E., but expanded his activities.
While the commissioners were at first leaning toward giving the Placerville stand alone and Wright’s Mesa facility operators two months to move to more suitable locations, in the end they directed staff to follow up with them.
“The board gave me impression that they may consider issuing them some temporary permit until state and county come up with their rules and regulations,” said Rozycki.
“It’s premature to say whether they will get temporary approval or that they will have to move.”