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