RE: Proliferation of Marijuana Grow Operations in Garfield County Regulation of Marijuana Personal Use, Medical Use, and Caregivers in Garfield County

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3 RE: Proliferation of Marijuana Grow Operations in Garfield County Regulation of Marijuana Personal Use, Medical Use, and Caregivers in Garfield County Board of County Commissioners Direction On July 18, 2016, the Community Development Department held a Public Meeting with the Board of County Commissioners (Board) concerning the proliferation of marijuana grow operations in Garfield County as a result of legal personal use, medical use and caregiver grows authorized by Amendment 64 of the Colorado Constitution. At this Meeting, the Board directed Staff to begin to process a Text Amendment to the Land Use and Development Code of 2013, as amended (LUDC) with the Board as the Applicant to codify Standards for Marijuana Personal Use, Medical Use, and Caregivers within Garfield County. These Standards are to address nuisance, health and safety issues related an individual s constitutional rights to grow marijuana for personal and medical use under the State Constitution. BACKGROUND Since the passage of Amendment 20 and Amendment 64, Garfield County has seen and experienced a proliferation of personal marijuana grow operations. Many of these grow-ops are inside residential homes but many are also large scale outdoor grow operations and greenhouses. Currently under the County s land use regulations, the County only has the ability to regulate the grow operations related to Operation Premise Cultivation Operations ( OPCOs ), as defined by the County s Land Use and Development Code. The County s current code (Section 7-903) regulates OPCOs, but not Caregiver facilities or personal grows. This Section states, it will not be construed to apply to the private cultivation of Medical Marijuana by a registered patient or primary caregiver as defined in Article XVIII, Section 14, of the Colorado Constitution. Simply put, this means that medical marijuana growers, caregivers, and recreational growers are not currently regulated through Garfield County s local land use regulations. Since most greenhouse structures are considered exempt from the County s adopted Building Code, these types of growing facilities are not subject to the County s building code provisions and associated permitting. The State Department of Public Health and Environment, and law enforcement agencies are tasked with enforcing state laws, rules, and regulations governing personal medical and recreational marijuana. However, since the legalization of marijuana the County has learned that these agencies have little to no ability to control the growing of personal marijuana because of the various nuances in the law. For instance, Article XVIII, Section 14 of the Colorado Constitution authorizes medical marijuana patients to possess no more than six plants and no more than two ounces of marijuana, however if medically necessary, a patient may possess more than 6 plants. There are medical marijuana patients in Garfield County with extended plant count prescriptions of 99 plants. Unlike recreational marijuana, growing of medical marijuana is not limited to enclosed, locked space. Therefore and for example, two medical marijuana users each with medical cards for 99 plants, living in the same household, may legally grow 198 plants outdoors. Amendment 20 specifically provides that a person shall not grow marijuana plants in public, however there is no sanction or penalty written into the law for growing plants within view of the public, thus no way to enforce against persons who grow in public. If a patient violates any of the provisions of the medical marijuana laws, such patient is subject to criminal charges, and CDPHE may revoke the patient s medical marijuana card for a period of one-year. 1 P a g e

4 Medical marijuana patients may designate a primary caregiver, and a caregiver may grow for up to 5 patients, unless they obtain a waiver from the state to grow for more. There are currently 17 people in Colorado who have a waiver to grow for more than 5 patients. Statutes require caregivers to register with CDPHE, provide their location, and keep copies of their patient s medical marijuana cards, however there are no criminal or other sanctions written into the law to punish those caregivers who fail to either register with CDPHE or provide their location. A caregiver may however be charged under the criminal statutes if they possess more plants than allowed under the law. For instance if a caregiver has the maximum of five patients, each authorized to have 6 medical plants, the caregiver may be charged with a crime if they possess more than 30 plants. A caregiver may live with other caregivers, thus it is possible for multiple caregivers to live in the same home and each grow up to 30 marijuana plants per person without a waiver from CDPHE. With respect to recreational marijuana, Article XVIII, Section 16, authorizes individuals to possess and grow six plants of marijuana for recreational use, and to further assist another person 21 years or older in growing marijuana. The Colorado Attorney General s Office opined that the language assisting another person means a person can assist an unlimited number of individuals, not just one person. Therefore, an individual can grow up to six plants each for an unlimited number of other individuals so long as each additional individual is a resident of Colorado and is over the age of 21. Under the current law, recreational marijuana must be grown in an enclosed locked space, not viewable by the public. Without zoning regulations, individuals can legally grow hundreds of plants in enclosed, locked space in Garfield County. No state agency has authority to enforce rules applicable to recreational marijuana growers and as a result, enforcement has fallen to local governments. In the case of both medical and recreational marijuana, individuals exceeding legal plant counts are subject to criminal penalties; however, as evidenced in the above discussion, there are a variety of defenses available to both medical and recreational marijuana growers with large plant counts, and it is likely the person charged can present a defense to the crime. The County continues to receive frequent complaints regarding grow operations, ranging from those in residential areas that are growing within traditional single family homes to those growers with large open air grows and large greenhouses in the County s rural areas. Because these personal grow operations are legal, law enforcement can take no action. The Community Development Department has significant concerns with the size and scale, especially as they relate to potential issues regarding health, nuisance, and building safety. Among these concerns are the safety issues such as the growth of mold due to inadequate ventilation, accessibility to children and wildlife, impacts on land values, noxious odors, and those noted by the Building Division including structural issues, inadequate ventilation, excessive humidity in enclosed spaces which causes mold, and electrical issues associated with inadequate electrical wiring of larger enclosed personal grow operations. PERSONAL USE MARIJUANA (AKA RECREATIONAL) According to Amendment 64, codified in the Colorado Constitution Article XVIII, Section 16, Personal Use and Regulation of Marijuana, an individual has a right to grow up to 6 plants (3 flowering, 3 in the vegetative state). Amendment 64 further allows an individual over the age of 21 to assist another Colorado residents over the age of 21 in growing up to six plants. 2 P a g e

5 The County s land use code is silent on the growing of recreational marijuana. Because the Colorado Attorney General s Office has interpreted the language assisting another to include more than just one additional person, and there have been no further amendments to this language or contrary case law, it is possible for an individual to legally grow an unlimited number of recreational marijuana plants as long as those plants are for the purpose of assisting another person. This has resulted, we believe, in recreational grow operations serving more than just two people, sometimes in a cooperative scenario, and therefore having the propensity to become quite large in scale. MEDICAL MARIJUANA CAREGIVER According to Amendment 20, codified in Article XVIII of the Colorado Constitution, Section 14, Medical Use of Marijuana for Persons Suffering from Debilitating Medical Conditions, a Primary Care-Giver ( Caregiver ) is defined as 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. The Colorado Department of Public Health and Environment restricts Caregivers to 5 patients unless a Caregiver s Patient Limit Waiver is applied for and approved. Each patient may have 6 plants each (3 flowering, 3 in the vegetative state). Without a waiver, a Caregiver can have up to 30 plants. With a waiver of the patient cap the Caregiver can have additional patients -thus additional plants. In addition, there are doctors who will prescribe additional plants for a particular patient stating patient x must have 30 plants for her debilitating pain. In some known cases, the Caregiver s grow has easily exceeded 100 plants. The County s land use code is silent on the growing of medical marijuana. We are now aware that patients frequently have medical cards authorizing them to have far in excess of 6 plants. Therefore, the County is seeing large scale medical marijuana open air grows in the County that claim to be caregiver facilities. OPTIONS FOR REGULATION In response to size, scale, safety, nuisance (odor) and health-related issues, numerous jurisdictions across the State adopted regulations in their land use code to limit the growing of personal and medical marijuana. Many jurisdictions (ie. Jefferson County, City and County of Denver, Eagle County, Huerfano County amongst others) have adopted plant count caps, whereby they limit the number of marijuana plants that can be grown on a single property. Other jurisdictions (eg. Boulder County and Park County) have taken the approach of limiting the area in which one can grow which has the effect of ensuring grow operations are smaller in scale and thus do not generally have the elevated concerns for building safety and other health and nuisance related issues. In 2014, Staff brought an option of regulating grow operations through a plant count proposal. Should the Board want to consider new land use regulations, either plant counts or limitation on grow area may be an effective means for regulating this use. RECOMMENDATION The Community Development Department suggests the following approach for regulations that we think may be successful in addressing the size, scale and location issues related to grow operations. First, staff recommends several definitions be added to the LUDC that clearly define terms used within the 3 P a g e

6 language of the regulations. These terms are consistent with the terms used in the State Constitution. Staff further recommends that the definition of Agriculture be amended so that marijuana is excluded as an agricultural product. The definitions should be amended as follows: Agriculture. The use of land for production, cultivation, growing and harvesting of crops and plants; raising and breeding livestock, commercial animal feed lot operations; harvesting, storage, grading, packaging, processing, and distribution of agricultural commodities; construction of internal roads, ponds, dams and ditches necessary to agricultural operations, excepting those regulated as Water Impoundment; dairying, aquaculture, horticulture, floriculture, viticulture, nursery, and animal and poultry husbandry; and the necessary Accessory Uses and Structures needed for harvesting, packing, treating, or storing, excluding forestry. Agriculture does not include the growing of marijuana for Medical Use, Personal Use, Caregiver, or Optional Premises Cultivation Operation (OPCO) purposes. Enclosed Locked Space. Shall mean a permanent or semi-permanent structure covered and surrounded on all sides (eg. walls, roof and doors) so that no plants are visible to the public or adjacent property that is secured at all points of ingress or egress with a locking mechanism designed to limit access such as with a key or combination lock. Marijuana, Personal Use. Notwithstanding any other provision of law, the following acts are not unlawful and shall not be an offense under Colorado law or the law of any locality within Colorado or be a basis for seizure or forfeiture of assets under Colorado law for persons twentyone years of age or older: a. Possessing, using, displaying, purchasing, or transporting marijuana accessories or one ounce or less of marijuana. b. Possessing, growing, processing, or transporting no more than six marijuana plants, with three or fewer being mature, flowering plants, and possession of the marijuana produced by the plants on the premises where the plants were grown, provided that the growing takes place in an enclosed, locked space, is not conducted openly or publicly, and is not made available for sale. c. Transfer of one ounce or less of marijuana without remuneration to a person who is twenty-one years of age or older. d. Consumption of marijuana, provided that nothing in this section shall permit consumption that is conducted openly and publicly or in a manner that endangers others. e. Assisting another person who is twenty-one years of age or older in any of the acts described in paragraphs (a) through (d) of this subsection. Marijuana, Medical Use. 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, which may be authorized only 4 P a g e

7 after a diagnosis of the patient's debilitating medical condition by a physician or physicians, as provided by this section. Marijuana, Caregiver. "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. Colo. Const. Art. XVIII, Sec. 14 (f). To address size thresholds in the LUDC, staff recommends that the growing of marijuana for either personal or medical use be limited to size/square feet per an individual property/parcel and by adopting a maximum marijuana plant count for an individual property/parcel. SQUARE FOOTAGE OF GROW SPACE AND PLANT COUNT LIMITATION The following recommended text amendment is to address a change to the standards instituting a square foot growing space and plant count limitation. Staff believes this size and plant count limitation acknowledges individual rights to grow medical or personal marijuana while protecting the citizens of Garfield County and neighboring property owners from safety risks caused by unrestricted growing of personal marijuana mentioned above, risks associated with unsafe building practices found in personal marijuana grow structures, and other major nuisance issues. A benefit of adopting regulations based on square footage is that the size limitation more directly address building safety concerns and accounts for the transient nature of the marijuana plants, meaning that if a landowner moves the plants, we still may be able to demonstrate that they were growing marijuana outside of the allotted square footage. Meanwhile, some jurisdictions are using a 36 plant count cap which is derived from the ability of caregivers to grow up to 30 plants without a State granted waiver plus the ability for a person to also grow 6 plants for personal use. In 2014, a 12 plant count was proposed that was based upon the ability for a person to grow 6 recreational plants for oneself and 6 for another. Based on input from the Building Official as well as from other jurisdictions, if the Commission considers a grow area limitation, 300 square feet of grow area per property is a recommended area limitation. For reference, 300 square foot is approximately the size of a modest living room or about the size of a onecar garage. In addition, a benefit of adopting regulations that includes the number of plants is that the plant count tracks very closely to the constitutional amendments for the number of plants allowed for medical and personal marijuana. To this end, Staff recommends a standard that limits personal, medical and caregiver grows to 300 square feet and not to exceed 36 plants. Standards. In order to clarify the provisions and regulations that pertain to these specific types of grows, the following standards are recommended to be added to Section ; a section currently designed for accessory uses and structures. Note that Amendment 20 (Medical) does not require growing to occur in Enclosed Locked Space, but staff is recommending that become a more restrictive standard for growing medical or caregiver marijuana within the County. 5 P a g e

8 C. Marijuana, Medical, Personal or Caregiver i. Any person growing marijuana for their own medical use, for their patients medical use, or for personal use shall comply with the County land use code and the adopted Building Code. ii. Any person growing marijuana shall grow it in an Enclosed Locked Space not viewable by the public or adjacent property. iii. All cultivation of marijuana shall only occur as an accessory use to a Dwelling Unit. iv. All cultivation of marijuana shall only occur in the primary residence of the patient, caregiver or person over 21 years old, or in an accessory structure on the same property. v. Each Lot is restricted to the following marijuana growing space and plant count limitations regardless of the number of patients, primary caregivers, or persons over the age of 21 residing on one Lot: Lot Size and Dwelling Unit Count 20,000 Square Feet or more and with 2 or fewer Dwelling Units Less than 20,000 Square Feet and with 2 or fewer Dwelling Units Any Lot with 3 or more Dwelling Units Grow Area and Plant Count Limitation 300 Square Feet and not to exceed 36 Plants per Lot 100 Square Feet and not to exceed 12 Plants per Lot 100 Square Feet and not to exceed 12 Plants per Dwelling Unit vi. vii. All cultivation of marijuana shall not cause odors, smoke, heat, glare or light that is detectable to a person of normal senses beyond the property line of the property upon which the use is being conducted, or in an adjacent dwelling unit or public area. All chemicals utilized in the growing of marijuana shall be used, stored, and disposed of in accordance with all applicable laws and regulations. In addition, all spent soils shall be disposed of in accordance with all applicable laws and regulations. Uses. In order to provide additional clarity about the accessory growing use, it is recommended that the Use Table is modified to reflect this type of accessory use. 6 P a g e

9 If the Board decides to regulate the growing of personal marijuana as provided herein, staff also recommends the heading description for Section be modified to state The following shall apply to all Accessory Buildings, Structures or Uses. 7 P a g e