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HomeMy WebLinkAbout08841As Amended February 23, 2015 ORDINANCE NO. 8841 AN ORDINANCE AMENDING CHAPTERS 2 AND 15 OF TITLE XVII OF THE PUEBLO MUNICIPAL CODE RELATING TO MEDICAL AND RETAIL PERSONAL MARIJUANA CULTIVATION AND PROVIDING PENALTIES FOR VIOLATION THEREOF BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (brackets indicate matter being deleted, underscoring indicating matter being added) SECTION 1. Section 17-2-1, Chapter 2, Title XVII of the Pueblo Municipal Code, as amended, is hereby modified by the addition of the following subsections: (16.001) means a permanent or semi-permanent area, Enclosed Space surrounded on all sides, including the roof. The temporary opening of windows or doors does not convert the area into an unenclosed space. (27.1) means secured at all points of ingress and egress Locked Space with a locking mechanism, such as a key or combination lock, designed to limit access only to those lawfully permitted. (32.001) means the use of a residential Marijuana Home Cultivation property, in which a person resides as their primary residence, for the cultivation and growing of medical and/or retail marijuana for that person’s personal use only. The use of a Marijuana Home Cultivation shall require compliance with Section 17-15-8 and/or 17-15-20 of this Title. SECTION 2. Chapter 15, Title XVII of the Pueblo Municipal Code, as amended, is hereby modified by the addition of Article 1 to read as follows: CHAPTER 15 Marijuana Code\[Medical Marijuana\] Article 1 Findings, Definitions, and Purpose SECTION 3. Section 17-15-1, Chapter 15, Title XVII of the Pueblo Municipal Code, as amended, is hereby amended and modified as follows: \[\] Sec. 17-15-1.Findings.Purpose and Scope. (a) The City Council hereby makes the following findings of fact: (1) On November 7, 2000, the voters of the State of Colorado approved Amendment 20. Amendment 20 added Section 14 of Article 18 to the Colorado Constitution and created a limited exception from criminal liability under Colorado law (as opposed to federal law) for seriously ill persons who are in need of marijuana for specified medical purposes and who obtain and use medical marijuana under the limited, specified circumstances described in Amendment 20. (2) The intent of Amendment 20 was to enable certain specified persons who comply with the registration provisions of the law to legally obtain, possess, cultivate, grow, use and distribute marijuana without fear of criminal prosecution under Colorado (as opposed to federal) law. (3) On November 6, 2012, the voters of the State of Colorado approved Amendment 64. Amendment 64 added Section 16 of Article 18 to the Colorado Constitution and legalized under Colorado law (as opposed to federal law), the personal use, possession, and limited cultivation of recreational marijuana for adults twenty-one years of age or older. \[ Despite the adoption of amendment 20, marijuana is still a controlled substance under Colorado and federal law. As a result, making it legal for a person to obtain, possess, cultivate, grow, use and distribute limited amounts of marijuana, even for medical use as contemplated by Amendment 20, has the potential for abuse that should be closely monitored and regulated by \] local authorities. (4) Despite the adoption of Amendments 20 and 64, marijuana remains a controlled substance under federal law. Marijuana has the potential for abuse that should be closely monitored and regulated. If not closely \[\] monitored and regulated, the presence of marijuana, even for the purposes thats and 64 legally permitted by Amendment 20, can cause an increase in \[\]create nuisances, and affect illegal activities within the City, affecting the health, safety, order, comfort, convenience and general welfare of the residents of the City. (5) Pursuant to the provisions of Article XX, Section 6 of the Colorado Constitution, and as further authorized by state statutes, including, but not limited to C.R.S. Section 31-15-401, the City has broad authority to exercise its police powers to promote and protect the health, safety, and welfare of the community and its residents. (6) \[\]sand If medical marijuana facilities operating pursuant to Amendment 20 64, and state law were allowed to be established and to operate without \[\] sales appropriate local regulation of their location, medical marijuana \[\] centers might be established in areas that would be inconsistent with surrounding uses, or otherwise be detrimental to the public health, safety and welfare. (\[6\]7) On May 11, 2010, the Colorado General Assembly passed House Bill 10- 1284, which authorizes and recognizes the authority of cities to enact ordinances regulating, licensing and zoning medical marijuana facilities and medical marijuana. (\[7\]8) The City of Pueblo has determined that, between April 30, 2008 and May 31, 2010, the incidence of thefts, burglaries and robberies in nonresidential zone districts, along Interstate 25 and highway 50A within the City limits has been at least two (2) times greater than the same offenses over the same period in nonresidential zone districts within the City. Buffering medical marijuana facilities from these corridors is necessary to protect the health, safety and welfare of the residents of the City of Pueblo and the customers, employees, managers and owners of the medical marijuana facilities. (\[8\]9) Nothing in this Chapter allows a person to: a. Engage in conduct that endangers others or causes a public nuisance; b. Possess, cultivate, grow, use or distribute marijuana for any purpose \[\]that allowed by other than for use as medical marijuana Amendments 20 and 64, the implementing state statutes and administrative regulations, and Pueblo City Charter, ordinances, rules and regulations. c. Possess, cultivate, grow, use or distribute marijuana that is otherwise illegal under applicable law; or d. Engage in any activity related to the possession, cultivation, growing, use or distribution of marijuana that is otherwise not permitted under the laws of the City or the State of Colorado. (\[9\]10) This Chapter is necessary and proper to provide for the safety, preserve the health, promote the prosperity and improve the order, comfort and convenience of the City and the inhabitants thereof. (\[10\]11) No person, business, activity or use that distributed or involved the distribution of marijuana within the City prior to the enactment of this Chapter shall be deemed to have been legally established under this Code, and no such person, business, activity or use shall be entitled to claim legal nonconforming status under any provision of this Code or applicable law. (b) Definitions. As used in this Chapter, the following words shall have the following meanings, unless the context clearly requires otherwise: (1) means the voter-initiated amendment to the Colorado Amendment 64 Constitution adopted November 6, 2012. Amendment 64 added Section 16 to Article 18 of the Colorado Constitution. (2) means the planting, growing or harvesting of marijuana, Cultivation including but not limited to hydroponic cultivation and cloning. (3) means a permanent or semi-permanent area, Enclosed Space surrounded on all sides, including the roof. The temporary opening of windows or doors does not convert the area into an unenclosed space. (4) means secured at all points of ingress and egress with a Locked Space locking mechanism, such as a key or combination lock, designed to limit access only to those lawfully permitted. (5) means the use of a residential property, in Marijuana Home Cultivation which a person resides as their primary residence, for the cultivation and growing of medical and/or retail marijuana for that person’s personal use only. The use of a Marijuana Home Cultivation shall require compliance with Section 17-15-8 and/or 17-15-20 of this Title. (6) means a medical marijuana center, optional Medical marijuana facility cultivation premises or medical marijuana infused product manufacturing. (7) means the use of any property or structure to Medical marijuana center distribute, transmit, give, dispense or otherwise provide marijuana in any manner to patients or primary caregivers in accordance with Amendment 20 and the implementing state statutes and administrative regulations. The medical marijuana center may include an optional cultivation premises as an accessory use by right. (8) means the use of any Medical marijuana optional cultivation premises property or structure for the cultivation and growing of medical marijuana. All medical marijuana optional cultivation premises shall be contiguous to the associated medical marijuana center or infused product manufacturing facility. Discontiguous optional cultivation premises are prohibited uses. 9 means a () Medical marijuana infused productmanufacturing manufacturing or processing facility in which a product is infused with medical marijuana that is intended for use or consumption other than by smoking, including but not limited to edible products, ointments and tinctures. The medical marijuana infused product manufacturing use may include an optional cultivation premises as an accessory use by right. (10) means a change in the approved limited use permit to Minor revision allow changes, which are required by circumstances not foreseen when approval of the limited use permit was given, and have no adverse impact on adjoining or surrounding properties. A minor revision may be approved for only the following: (1) reduction of size of the premises; (2) increase in size of the premises of ten percent (10%) or less; (3) installation of signage; (4) other changes deemed to be minor in nature by the administrative official. (c) In addition to the definitions provided in Subsection (b) of this Section, the other defined terms in Amendments 20 and 64 are incorporated into this Chapter by reference, except where the ordinance provides a different definition or the context makes it clear that the statutory or constitutional definition does not apply. SECTION 4. Section 17-15-4, Chapter 15, Title XVII of the Pueblo Municipal Code, as amended, is hereby deleted and reserved. SECTION 5. Section 17-15-8, Chapter 15, Title XVII of the Pueblo Municipal Code, as amended, is hereby amended and modified as follows: \[\] Sec. 17-15-8. Medical marijuana optional cultivation premises cultivation performance standards. \[\] All medical marijuana cultivation uses, including optional cultivation premises \[\] and home cultivations, shall comply with the following performance standards: (1) The optional cultivation premises shall be contiguous to the associated medical marijuana center or medical marijuana infused product manufacturing facility. or structure used for the cultivation (2) The facility shall comply with all applicable building codes, including but not limited to the health, building, electrical, plumbing, mechanical, sign, fire, and other codes, statutes, and ordinances. non-residential (3) All grow operations shall be conducted in a fully enclosed \[\]\[\] building or greenhouse. Outdoor grow operations shall be are prohibited. \[\] Optional cultivation premises (4) Grow operations shall not be located in a structure that contains a residential use. \[ (5) It shall be unlawful for any patient or primary caregiver to cultivate marijuana until he or she has first registered the location with the Pueblo Police Department and presented his or her state medical marijuana registration identification card to the Police. This information shall be a confidential record and shall be exempt from the \] Colorado Open Records Act, as required by House Bill 10-1284. \[ (6) In addition to the above requirements, home cultivation uses shall also comply with the following: (a) Growing permitted for registered patients that are residents of the dwelling, (b) The registered patient(s) must live at the property used for cultivation, (c) Sale, transferal or other distribution of any portions of the plant, product, bi- product, etc. associated with home cultivation shall require a medical marijuana center license, . (d) The number of plants shall not exceed what’s allowed by Amendment 20 (e) It shall be unlawful for any patient or caregiver to cultivate marijuana using carbon dioxide at any concentration above ambient air concentration for 4900 feet above sea level. The use or storage of other hazardous chemicals must be approved by the Fire Department. (f) A copy of the registered patients state medical marijuana registration shall be posted in a conspicuous place within three (3) feet of the place where the marijuana \] plants are cultivated. SECTION 6. Chapter 15, Title XVII of the Pueblo Municipal Code, as amended, is hereby modified by the addition of Article 2 to read as follows: Article 2 Home Cultivation Performance Standards Sec. 17-15-20. Medical and Retail Marijuana Home Cultivation performance standards. (1) The structure used for Home Cultivation shall comply with all applicable building codes, including but not limited to the health, building, electrical, plumbing, mechanical, sign, fire, and other codes, statutes, and ordinances. (2) All grow operations shall be conducted in a fully enclosed and locked space inside a detached one-family residence, attached accessory structure to a detached one-family residence, or a detached accessory structure subject to the following limitations: (a) The total area used to grow and process marijuana inside a detached one-family residence or accessory structure attached to a detached one-family residence shall not exceed one hundred (100) contiguous square feet and ten feet in height. Only a medical marijuana caregiver may seek a variance pursuant to Pueblo Municipal Code §17-5-34 to exceed the one hundred (100) contiguous square feet limitation; however, in no event shall a caregiver be allowed to grow marijuana in an area exceeding twenty-five percent (25%) of the gross floor area of the residence or one hundred (100) square feet, whichever is greater. (b) The total area used to grow and process marijuana inside a detached accessory structure shall not exceed one hundred fifty (150) contiguous feet and twelve feet in height, Only a medical marijuana caregiver may seek a variance pursuant to Pueblo Municipal Code §17-5-34 to exceed the one hundred fifty (150) contiguous square feet; however, in no event shall a Caregiver be allowed to grow marijuana in a detached accessory structure larger than necessary to allow ten (10) square feet per doctor recommended marijuana plant, or one hundred fifty (150) square feet, whichever is greater. (c) All detached accessory structures must comply with all other applicable zoning codes. (3) Any space used for grow operations pursuant to this Article 2 must not be available to the public or accessible to anyone under the age of twenty-one (21) years unless such person possesses a medical marijuana registration card. (4) All Home Cultivations must have a ventilation system(s) that prevents recirculation of indoor air and requires all air to be vented directly to the outdoors through a carbon filtration system sufficient to prevent particulate and odors from escaping the Home Cultivation. All ventilation systems must meet all applicable building codes. (5) Outdoor grow operations and home cultivation in greenhouse are prohibited. It shall be unlawful and a class one municipal offense to violate this subsection. In addition, violation of this subsection shall be considered a nuisance subject to abatement pursuant to Pueblo Municipal Code §7-1-1 pro se et seq. (6) Conducting a Home Cultivation in, or on any property zoned for any use other than one-family residential is prohibited. (7) Home Cultivation of marijuana is only permitted by adults over 21 years of age, unless such person possesses a valid medical marijuana registration card, who reside at, and use the property on which the Home Cultivation is located as their primary residence; except that Medical Marijuana Caregivers may cultivate for up to five (5) persons who do not reside at the property on which the Home Cultivation is located, so long as the property on which the Home Cultivation is located is the Caregiver’s primary residence and the Caregiver has been designated by the person(s) that possess the valid medical marijuana registration card(s) to be their Caregiver. In no event, shall a Caregiver be allowed to cultivate for more than a total of five (5) patients without obtaining a valid medical marijuana license from the City pursuant to Pueblo Municipal Code §11-10-301 et seq. (8) Anyone cultivating medical marijuana must post a copy of the registered patient’s state medical marijuana registration in a conspicuous place within three (3) feet of the Home Cultivation. (9) Sale, transfer, or other distribution of any portions of the plant, product, bi- product, etc. associated with Home Cultivation in exchange for any form of consideration is prohibited; except that transfer of one ounce or less of retail marijuana without remuneration to a person who is 21 years of age or older shall not be unlawful. (10) Sale, transfer (with or without remuneration), gift, or other distribution of any portions of the plant, product, bi-product, etc. associated with Home Cultivation to persons under 21 years of age, unless such person possesses a valid medical marijuana registration card and the person distributing the marijuana is their designated caregiver, is prohibited and unlawful, and a class one municipal offense. (11) It shall be unlawful and a class two municipal offense to cultivate marijuana using carbon dioxide at any concentration above ambient air concentration for 4900 feet above sea level, or to use or store any other hazardous chemicals without first obtaining the approval of the Fire Department. (12) If the residential property used for Personal Cultivation is leased, the resident of the property must have written authorization, in the form approved by the Planning and Community Development Department, from the property owner allowing the property to be used to cultivate marijuana. Owner approval forms may be obtained from the Planning and Community Development Department. (13) Violation of any of any subsection(s) of this Article 2 shall be a Class two municipal offense unless specifically designated otherwise, and may be considered a nuisance subject to abatement pursuant to Pueblo Municipal pro se Code Section 7-1-1 et seq. SECTION 7. Chapter 15, Title XVII of the Pueblo Municipal Code, as amended, is hereby modified by the addition of Article 3 to read as follows: Article 3 Nuisance Sec. 15-17-30. Marijuana as a nuisance. (1) Neither the growing nor processing of medical or retail marijuana plants as part of a Home Cultivation shall be perceptible from the exterior of the structure in which any such activities occur, by or through any of the following means, or as a result of the general of any of the following impacts or effects: (a) Common visual observation (e.g., through a window) by a person of normal vision; (b) Light pollution, glare, or brightness that reasonably could be expected to disturb the repose of another person of normal visual sensitivities; (c) The smell or odor of marijuana, or unusual smells or odors generated by or connected to such growing or processing and not generally found in a residential environment, as detectable by a person with a normal sense of smell; (d) Undue or unusually high volumes of vehicular or pedestrian traffic, including unusually heavy or frequent parking in front of or in the immediate vicinity of the residence or residential structure; or (e) Noise from exhaust fans, other equipment, or other sources associated with or connected to such growing or processing in excess of any applicable permissible noise level set forth in Pueblo Municipal Code Section 11-1-607. (2) Receipt by the City of three or more sustained complaints within a ninety (90) day period that a property on which a Home Cultivation exists has violated this Article 3 shall be considered a nuisance per se. (3) Each continuance of a nuisance for twenty-four (24) hours shall be considered a separate and distinct violation of this Chapter. Sec. 15-17-31. Nuisance . per se Any violation of this Chapter designated herein as a nuisance is per se considered a condition detrimental to the health or safety of any of the inhabitants of the City, and may be summarily abated pursuant to Pueblo Municipal Code § 7-1-1 without right of appeal. The City may recover any et seq and costs incurred as a result of the abatement pursuant to Pueblo Municipal Code § 7-1-1 et seq. Sec. 15-17-32. Notice. (1) With regard to all violations of this Chapter not designated as a nuisance it shall be unlawful and a class two municipal offense for the per se, owner or the occupant of any property to permit, continue or suffer the existence of any nuisance on any property under his or her ownership or control for a period of ten (10) days after service by certified mail or posting on the property notice of the nuisance. Service shall be deemed received upon the date signed on the return receipt, upon receipt of the return receipt unsigned, undeliverable or unclaimed, or ten (10) days after notice has been posted on the property. (2) The notice shall contain the following information: (a) The street address and legal description of the property sufficient for identification of the property; (b) A statement of the nature of the nuisance (i.e. visual, smell, noise, etc.); and (c) A statement that the nuisance must be removed or corrected within ten (10) days after receipt of the notice and if the nuisance is not abated, or an appeal filed within that time, the property will be declared to be a public nuisance. Thereafter, the City may enter upon the property and abate the nuisance to include removal and disposal of any marijuana plants, equipment, materials or items determined to be the cause of the nuisance. Sec. 15-17-33. Appeal. (1) In all cases except those involving a nuisance a property per se, owner or responsible party may file a written appeal with the City Manager or the designee of the City Manager within ten (10) days after receipt of the notice. (2) The appeal notice shall set forth the reasons why the property does not constitute a public nuisance and any defenses the property owner or responsible party may have for failure to remove the nuisance pursuant to the notice. Untimely appeals will not be considered. (3) The City Manager or the designee of the City Manager shall hold an appeal hearing within ten (10) days of the filing of a notice of appeal by the property owner or responsible party. At the hearing, the property owner or responsible party shall be entitled to present evidence and argue that the property does not constitute a public nuisance and any defenses the property owner or responsible party may have for failure to remove the nuisance. (4) The determination of the Hearing Officer after the hearing shall be final and not appealable. If, after the hearing, regardless of the attendance of the owner or the responsible party or their respective agents, the Hearing Officer determines that the property is a public nuisance, the Hearing Officer shall give a written order to the owner or responsible party at the time of the hearing, or if the owner or responsible party does not appear, by mailing a copy of the written order by U.S. mail postage pre-paid to the address provided by the owner or responsible party in the notice of appeal, that, unless the nuisance is abated within seven (7) days of the date of the written order, the City shall enter upon the property and cause the abatement of the nuisance, which may include but not be limited to removal and disposal of marijuana, marijuana plants, equipment and materials. Sec. 15-17-34. Recovery of costs. Within fourteen (14) days of completion of the abatement by the City, the City shall provide an accounting to the owner and the responsible party of the costs of such abatement. If all or any portion of the cost of such abatement remains unpaid after thirty (30) days, the amount thereof shall be charged against the owner of the property that was the subject of the abatement effort and be considered an unpaid debt owed to the City. Upon recording in the office of the County Clerk and Recorder of a statement under oath of the City Manager showing the amount of the unpaid cost of such abatement and describing the property, the unpaid cost of such abatement plus interest at the rate of ten percent (10%) per annum from the date such costs were incurred, shall be and constitute a perpetual lien on the property having priority over all other liens and encumbrances except general ad valorem tax liens, and such lien shall remain in full force and effect until paid in full. Filing of such lien shall not be an exclusive remedy. The City may pursue any other remedies provided for in law or equity by the laws of the State of Colorado, City Charter or Municipal Code for collection of a debt owed to the City. SECTION 8. This Ordinance, and these amendments to Title XVII of the Pueblo Municipal Code, shall be subject to administration and enforcement in accordance with Chapters 5 and 7 of the Title XVII, Pueblo Municipal Code, as amended. Any person who violates any provision of this Ordinance or these amendments shall be guilty of a municipal offense and shall be subject to the punishment and all other remedies as provided in Chapter 7 of Title XVII of the Pueblo Municipal Code, as amended. SECTION 9. This Ordinance shall become effective immediately upon final passage and approval. INTRODUCED: December 8, 2014 BY: Chris Nicoll PASSED AND APPROVED: February 23, 2015 City Clerk’s Office Item # R-1 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: December 8, 2014 TO: President Stephen G. Nawrocki and Members of City Council CC: Sam Azad, City Manager VIA: Gina Dutcher, City Clerk FROM: Steven Meier, Director of Planning and Community Development SUBJECT: AN ORDINANCE AMENDING CHAPTERS 2 AND 15 OF TITLE XVII OF THE PUEBLO MUNICIPAL CODE RELATING TO MEDICAL AND RETAIL PERSONAL MARIJUANA CULTIVATION AND PROVIDING PENALTIES FOR VIOLATION THEREOF SUMMARY: Attached for consideration is a text amendment that will amend Chapters 2 and 15 of Title XVII of the Pueblo Municipal Code relating to Medical and Retail Personal Marijuana Cultivation. PREVIOUS COUNCIL ACTION: None. BACKGROUND: On November 6, 2012, the voters of Colorado approved Amendment 64 to the Colorado Constitution, which authorized anyone over the age of 21 years: (1) to possess, use, display, purchase, or transport one ounce or less of marijuana, or marijuana accessories; and (2) to possess, grow, process, and transport no more than six marijuana plants, with three or fewer being mature, flowering plants, and possess the marijuana produced by the plants on the premises where the plants were grown, provided that the growing of the plants takes place in an enclosed, locked space, is not conducted openly or publicly, and is not made available for sale. On October 15, 2014, the Planning and Zoning Commission was presented with the original version of the proposed Ordinance and received significant testimony from the public regarding its provisions. On October 28, 2014, City Staff met with a committee comprised of community members concerned with the amendments proposed, either in support of or in opposition to the proposed Ordinance. The committee, as well as staff members, discussed aspects of cultivating marijuana (medical and recreational) and how best to move forward. Staff took the information received from the meeting and is proposing an updated version of the marijuana home grow Ordinance. FINANCIAL IMPLICATIONS: There are no financial implications for the City. BOARD/COMMISSION RECOMMENDATION: The Planning and Zoning Commission, at their November 12, Regular Meeting, voted 4- 0 to recommend approval with Commissioners Eslinger, Kaufman, and Lucas absent. STAKEHOLDER PROCESS: A Notice of Public Hearing was published in the Pueblo Chieftain and a Public Hearing was held before the Planning and Zoning Commission on October 15, 2014 and November 12, 2014. ALTERNATIVES: If City Council does not approve this Ordinance, Title XVII of the Pueblo Municipal Code will not be amended to reflect the proposed changes relating to Medical and Retail Personal Marijuana Cultivation. Upon request of City Council, the Ordinance could be returned to the Planning and Zoning Commission for consideration of proposed modifications. RECOMMENDATION: Approval of the Ordinance. Attachments: Minutes of the Planning and Zoning Commission November 12, 2014 Regular Meeting Staff Report for Text Amendment TA-14-04 and Exhibits Notice of Public Hearing