HomeMy WebLinkAboutcoa.lu.ca.0007.2013.ASLU 4w
THE CITY OF ASPEN
City of Aspen Community Development Department
CASE NUMBER 0007.2013.ASLU
PARCEL ID NUMBERS
PROJECTS ADDRESS 130 S GALENA ST
PLANNER CHRIS BENDON
CASE DESCRIPTION CODE AMENDMENT/RECREATIONAL
MARIJUANA
REPRESENTATIVE CITY OF ASPEN
DATE OF FINAL ACTION 1.8.13
CLOSED BY ANGELA SCOREY ON: 1.8.14
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ORDINANCE No. 39
(Series of 2013)
AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING AMENDMENTS TO
TITLE 26,THE LAND USE CODE, REGARDING RETAIL MARIJUANA.
WHEREAS, in accordance with Sections 26.208 and 26.310 of the City of Aspen Land
Use Code, the City Council of the City of Aspen directed the Community Development
Department to prepare code amendments related to retail (aka recreational) marijuana; and,
WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development
Department conducted Public Outreach, including outreach directly to professionals within the
medical and recreational marijuana industry and holding a public work session with the City
Council; and,
WHEREAS, the Community Development Director has recommended approval of the
proposed amendments to the City of Aspen Land Use Code as described herein; and,
WHEREAS, the Aspen City Council has reviewed the proposed code amendments and
finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310.050;
and,
WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for
the promotion of public health, safety, and welfare; and
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO THAT:
Section l: Chapter 26.104.100 of the City of Aspen Land Use Code, which section defines
terms used within the Land Use Code, shall be amended by adding the following terms and
definitions:
Liquor Store. A commercial establishment engaged in the retail sale of alcoholic beverages,
with no on-site consumption, and subject to local licensing allowances and restrictions.
Pharmacy. A commercial establishment engaged in the retail sale of prescription medicine,
with no on-site consumption, and subject to State licensing allowances and restrictions.
Marijuana, Retail Establishment. A commercial establishment which may include any
combination of the following uses: Marijuana Retail Store, Marijuana Cultivation Facility,
Marijuana Product Manufacturing Facility, and Marijuana Testing Facility.
Marijuana Retail Store. A commercial establishment engaged in the retail sale of
marijuana, with no on-site consumption, and subject to local licensing allowances and
restrictions.
Ordinance No. 39,Series 2013,
F, a % e 1
Marijuana Cultivation Facility. A commercial establishment engaged in the growing and
production of marijuana for wholesale distribution, with no on-site consumption, and subject
to local licensing allowances and restrictions.
Marijuana Product Manufacturing Facility. A commercial establishment engaged in the
preparation or adaptation of marijuana into marijuana products for wholesale distribution,
with no on-site consumption, and subject to local licensing allowances and restrictions.
Marijuana Testing Facility. A commercial establishment engaged in the technical
evaluation of marijuana or marijuana-related products for safety, quality, potency, or other
metrics or measurable effects, with no on-site consumption, and subject to local licensing
allowances and restrictions.
Marijuana, Medical Establishment. A commercial establishment engaged in the retail sale
of medical marijuana, with no on-site consumption, and subject to local licensing allowances
and restrictions. A Medical Marijuana Establishment may include a medical marijuana
center, infused product manufacturing facility, or optional premises cultivation facility as
such terms are defined in the Colorado Revised Statutes.
Section 2: Chapter 26.104.100 of the City of Aspen Land Use Code, which section defines
terms used within the Land Use Code, shall be amended by changing the following terms and
definitions to read as follows:
Agricultural uses. The use of land and buildings for the production of crops, animals,
animal products and the keeping of livestock including riding stables, arenas, orchards,
nurseries, flower production, dairy operations, fisheries, animal husbandry services or similar
uses. Agricultural uses shall not receive the general public or support a membership or
academic club. Uses incidental to a residence (such as a backyard ag rden) shall not
constitute Agricultural uses unless intended to support wholesale or retail sales. Cultivation,
Manufacturing and Testing of Medical or Retail Marijuana shall not be considered
Agricultural uses.
Retail and Restaurant Uses. Commercial establishments engaged in the selling or renting
of consumer goods and merchandise and the preparation and serving of food and drink to the
general public. The sale or rental of products manufactured or enhanced on-premises and the
rendering of services incidental to the sale or rental of such products shall be permitted.
Retail and restaurant uses shall include restaurant, nightclub and bar, food market,
neighborhood cafe, movie theater and the sale or rental of motorcycles, motor-driven cycles
and motorized bicycles as defined by Section 42-1-102, C.R.S., non-motorized vehicles such
as bicycles, clothing, sporting equipment, jewelry, books, videos, pharmacy, liquor store,
medical marijuana establishment, retail marijuana establishment, hardware, furniture, art and
similar uses and activities. Office and service uses shall not be considered retail uses.
Service uses. Commercial establishments engaged in providing personal or financial
services to the general public including banking, dry cleaning, Laundromat, tailoring,
mortuary, post office branch, shipping and receiving services, personal or sporting equipment
Ordinance No.39,Series 2013,
FI a 2
c
storage lockers, barber and beauty shop, tattoo parlor, pharmacy, medical marijuana
establishment, instructional or performing arts studio with no public performances, health
and fitness facility, spa, and similar activities. Accessory retail sales of products associated
with the primary service use are permitted.
Section 3: Section 26.710.160.B.2 of the City of Aspen Land Use Code, which section identifies
land uses permitted in the Service Commercial Industrial zone district which may contain up to
25% of the floor space as retail, shall be amended to include the following uses:
Marijuana Cultivation Facility, which may include up to 25% of the floor space used for a
medical marijuana establishment or a retail marijuana establishment (i.e. sales).
Marijuana Product Manufacturing Facility, which may include up to 25% of the floor space
used for a medical marijuana establishment or a retail marijuana establishment (i.e. sales).
Marijuana Testing Facility, which may include up to 25% of the floor space used for a
medical marijuana establishment or a retail marijuana establishment (i.e. sales).
Section 4: Effect Upon Existing Litigation.
This ordinance shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 5: Severability.
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 6: Effective Date.
In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall
become effective thirty (30) days following final passage.
Section 7: Notice of Public Hearing.
A public hearing on this ordinance shall be held on the 15th day of October, 2013, at a meeting of the
Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, 130
S. Galena St., Aspen, Colorado, a minimum of fifteen days prior to the hearing a public notice of the
same was published in a newspaper of general circulation within the City of Aspen.
[signatures on following page]
Ordinance No. 39, Series 2013,
#' 3
FIRST READING OF THIS ORDINANCE WAS INTRODUCED, READ AND ORDERED
PUBLISHED as provided by law, by the City Council of the City of Aspen on the 23`d day of
September, 2013.
ATTEST:
Kathryn S. Koch, City Clerk Steven Skadron,Mayor
FINALLY, adopted, passed and approved this day of , 2013.
ATTEST:
Kathryn S. Koch, City Clerk Steven Skadron, Mayor
Approved as to form:
James R. True, City Attorney
Ordinance No. 39,Series 2013,
MEMORANDUM
TO: Mayor Skadron and City Council
FROM: Chris Bendon, Community Development Directo
RE: Retail Marijuana— Land Use Code Amendments
Ordinance No. 39, Series of 2013, 2nd Reading
DATE: October 15, 2013
SUMMARY:
The proposed ordinance updates the City's Land Use Code to include definitions and zoning
allowances for Marijuana businesses including retail sales. It also includes related terms that the
City has not previously defined.
The proposal is in response to City Council direction during the September 16�h work session
regarding retail marijuana. Staff believes the proposal meets the expectations of local marijuana
businesses.
Since first reading, staff has updated definitions to correlate with terms used by the State. Staff has
sought comments and suggestions from local marijuana dispensaries — most of which have kept
abreast of the draft ordinance and staff recommendations. Staff has also sought comments from the
Planning and Zoning Commission — none were received prior to this memo. Staff will update the
Council if P&Z members do provide comments.
STAFF RECOMMENDATION:
Staff recommends approval of the proposed ordinance.
BACKGROUND& OVERVIEW:
City Council recently held a work session to discuss the State's new law regarding recreational
marijuana. The Council provided direction to staff to amend certain provisions of the City's
zoning code to permit sales of medicinal and recreational marijuana and to permit cultivation,
manufacturing, and testing faculties.
RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE):
"I move to approve Ordinance No. 39, Series of 2013, amending the City's zoning code to
permit marijuana businesses."
CITY MANAGER COMMENTS:
Marijuana Code Amendment
Page 1 of 1
ORDINANCE No. 39
(Series of 2013)
AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING AMENDMENTS TO
TITLE 26,THE LAND USE CODE, REGARDING RETAIL MARIJUANA.
WHEREAS, in accordance with Sections 26.208 and 26.310 of the City of Aspen Land
Use Code, the City Council of the City of Aspen directed the Community Development
Department to prepare code amendments related to retail (aka recreational) marijuana; and,
WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development
Department conducted Public Outreach, including outreach directly to professionals within the
medical and recreational marijuana industry and holding a public work session with the City
Council; and,
WHEREAS, the Community Development Director has recommended approval of the
proposed amendments to the City of Aspen Land Use Code as described herein; and,
WHEREAS, the Aspen City Council has reviewed the proposed code amendments and
finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310.050;
and,
WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for
the promotion of public health, safety, and welfare; and
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO THAT:
Section 1: Chapter 26.104.100 of the City of Aspen Land Use Code, which section defines
terms used within the Land Use Code, shall be amended by adding the following terms and
definitions:
Liquor Store. A commercial establishment engaged in the retail sale of alcoholic beverages,
with no on-site consumption, and subject to local licensing allowances and restrictions.
Pharmacy. A commercial establishment engaged in the retail sale of prescription medicine,
with no on-site consumption, and subject to State licensing allowances and restrictions.
Marijuana, Retail Establishment. A commercial establishment which may include any
combination of the following uses: Marijuana Retail Store, Marijuana Cultivation Facility,
Marijuana Product Manufacturing Facility, and Marijuana Testing Facility.
Marijuana Retail Store. A commercial establishment engaged in the retail sale of
marijuana, with no on-site consumption, and subject to local licensing allowances and
restrictions.
Ordinance No.39,Series 2013,
1, 1 1
Marijuana Cultivation Facility. A commercial establishment engaged in the growing and
production of marijuana for wholesale distribution, with no on-site consumption, and subject
to local licensing allowances and restrictions.
Marijuana Product Manufacturing Facility. A commercial establishment engaged in the
preparation or adaptation of marijuana into marijuana products for wholesale distribution,
with no on-site consumption, and subject to local licensing allowances and restrictions.
Marijuana Testing Facility. A commercial establishment engaged in the technical
evaluation of marijuana or marijuana-related products for safety, quality, potency, or other
metrics or measurable effects, with no on-site consumption, and subject to local licensing
allowances and restrictions.
Marijuana, Medical Establishment. A commercial establishment engaged in the retail sale
of medical marijuana, with no on-site consumption, and subject to local licensing allowances
and restrictions. A Medical Marijuana Establishment may include a medical marijuana
center, infused product manufacturing facility, or optional premises cultivation facility as
such terms are defined in the Colorado Revised Statutes.
Section 2: Chapter 26.104.100 of the City of Aspen Land Use Code, which section defines
terms used within the Land Use Code, shall be amended by changing the following terms and
definitions to read as follows:
Agricultural uses. The use of land and buildings for the production of crops, animals,
animal products and the keeping of livestock including riding stables, arenas, orchards,
nurseries, flower production, dairy operations, fisheries, animal husbandry services or similar
uses. Agricultural uses shall not receive the general public or support a membership or
academic club. Uses incidental to a residence (such as a backyard garden) shall not
constitute Agricultural uses unless intended to support wholesale or retail sales. Cultivation,
Manufacturing and Testing of Medical or Retail Marijuana shall not be considered
Agricultural uses.
Retail and Restaurant Uses. Commercial establishments engaged in the selling or renting
of consumer goods and merchandise and the preparation and serving of food and drink to the
general public. The sale or rental of products manufactured or enhanced on-premises and the
rendering of services incidental to the sale or rental of such products shall be permitted.
Retail and restaurant uses shall include restaurant, nightclub and bar, food market,
neighborhood cafe, movie theater and the sale or rental of motorcycles, motor-driven cycles
and motorized bicycles as defined by Section 42-1-102, C.R.S., non-motorized vehicles such
as bicycles, clothing, sporting equipment, jewelry, books, videos, pharmacy, liquor store,
medical marijuana establishment, retail marijuana establishment, hardware, furniture, art and
similar uses and activities. Office and service uses shall not be considered retail uses.
Service uses. Commercial establishments engaged in providing personal or financial
services to the general public including banking, dry cleaning, laundromat, tailoring,
mortuary, post office branch, shipping and receiving services, personal or sporting equipment
Ordinance No. 39,Series 2013,
P f: o 2
storage lockers, barber and beauty shop, tattoo parlor, pharmacy, medical marijuana
establishment, instructional or performing arts studio with no public performances, health
and fitness facility, spa, and similar activities. Accessory retail sales of products associated
with the primary service use are permitted.
Section 3: Section 26.710.160.13.2 of the City of Aspen Land Use Code, which section identifies
land uses permitted in the Service Commercial Industrial zone district which may contain up to
25% of the floor space as retail, shall be amended to include the following uses:
Marijuana Cultivation Facility, which may include up to 25% of the floor space used for
medical or retail marijuana sales.
Marijuana Product Manufacturing Facility, which may include up to 25% of the floor space
used for medical or retail marijuana sales.
Marijuana Testing Facility, which may include up to 25% of the floor space used for medical
or retail marijuana sales.
Section 4: Effect Upon Existing Litigation.
This ordinance shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 5: Severability.
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 6: Effective Date.
In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall
become effective thirty (30) days following final passage.
Section 7: Notice of Public Heariniz.
A public hearing on this ordinance shall be held on the 15`h day of October, 2013, at a meeting of the
Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, 130
S. Galena St., Aspen, Colorado, a minimum of fifteen days prior to the hearing a public notice of the
same was published in a newspaper of general circulation within the City of Aspen.
[signatures on following page]
Ordinance No. 39,Series 2013,
3
FIRST READING OF THIS ORDINANCE WAS INTRODUCED, READ AND ORDERED
PUBLISHED as provided by law, by the City Council of the City of Aspen on the 23`d day of
September, 2013.
ATTEST:
Kathryn S. Koch, City Clerk Steven Skadron,Mayor
FINALLY, adopted, passed and approved this day of , 2013.
ATTEST:
Kathryn S. Koch, City Clerk Steven Skadron, Mayor
Approved as to form:
James R. True, City Attorney
Ordinance No. 39,Series 2013,
4
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPE Y:
�- 414- 42AC61 HCjt:�i 3qunpt,Aspen, CO
HEDULED PUBLIC HE NG DATE:
STATE OF COLORADO )
ss.
County of Pitkin )
r, m t j (name, please print)
being or representing Applicant to the City of Aspen, Colorado, hereby personally
certify that l have complied with the public notice requirements of Section 26.304.060
(E) of the Aspen Land Use Code in the following manner:
Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fifteen (15)
days prior to the public hearing. A copy of the publication is attached hereto.
_ Posting of notice: By posting of notice, which form was obtained from the
Community Development Department, which was made of suitable, waterproof
materials, which was not less than twenty-two (22) inches wide and twenty-six
(26) inches high, and which was composed of letters not less than one inch in
height. Said notice was posted at least fifteen (15) days prior to the public hearing
and was continuously visible from the_day of , 20 , to
and including the date and time of the public hearing. A photograph of the posted
notice (sign) is attached hereto.
Mailing of notice. By the mailing of a notice obtained from the Community
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by first class postage
prepaid U.S. mail to all owners of property within three hundred (300) feet of the
property subject to the development application. The names and addresses of
property owners shall be those on the current tax records of Pitkin County as they
appeared no more than sixty (60) days prior to the date of the public hearing. A
copy of the owners and governmental agencies so noticed is attached hereto.
(Continued on next page)
>, e
Rezoning or text amendment: Whenever the official zoning district map is in
any way to be changed or amended incidental to or as part of a general revision
of this Title, or whenever the text of this Title is to be amended, whether such
revision be made by repeal of this Title and enactment of a new land use
regulation, or otherwise, the requirement of an accurate survey map or other
sufficient legal description of, and the notice to and listing of names and
addresses of owners of real property in the area of the proposed change shall be
waived. However,the proposed zoning map shall be available for public
inspection in the planning agency during all business hours for fifteen(15) days
prior to the public hearing on such amendments.
Signature
The forap 0 ing "Affidavit of Notice"was acknowledged before me s,a�ay
of , 20_aby Qk
PUBLICNOFIXE WITNESS MY HAND AND OFFICIAL SEAL
RE: AMENDMENTS TO THE
CITY OF ASPEN LAND USE
CODE-RETAIL MARIJUA-
NA My commission expires: ( _
NOTICE IS HEREBY GIVEN
that a public hearing will
be held on Tuesday,Octo-
ber 15,2013,at a meeting
to begin at 5:00 p.m.be-
fore the Aspen City Coun-
cil,Council Chambers,City
Hall,130 S.Galena St.,As-
pen,to consider amend-
ments to the text of the
( Land Use Code related to
I the retail marijuana. The
proposed amendment will
permit the sale of retail
marijuana in all retail
properties andwilI permit
the cultivation, g of mac TTACHMENTS AS APPLICABLE:
turfing,and testing of mar-
* COPY OF THE PUBLICATION
* PHOTOGRAPH OF THE POSTED NOTICE (SIGN)
* LIST OF THE OWNERS AND GOVERNMENT AGENGIES NOTIED
BY MAIL
* APPLICANT CERTICICATION OF MINERAL ESTATE OWNERS NOTICE
AS REQUIRED BY C.R.S. §24-65.5-103.3
i
I
MEMORANDUM
TO: Mayor Skadron and City Council
FROM: Debbie Quinn, Assistant City Attorney
Chris Bendon, Community Development Director
RE: Work Session Follow-up: Recreational Marijuana
DATE: September 16, 2013
SUMMARY:
This work session covered several decision points the City of Aspen needs to consider regarding
Recreational Marijuana.
City Council accepted staff recommendations and directed staff to prepare ordinances for further
consideration.
PERMITTING RECREATIONAL MARIJUANA SALES:
Question. Should the City of Armen allow the sale of recreational marijuana within city limits?
Recommendation. Staff recommends the sale of Recreational Marijuana be allowed and
classified as a retail use, allowed in zones permitting retail operations. This aligns with how the
City regulates liquor sales.
LIMITING THE NUMBER OF RETAIL OPERATIONS:
Question. Should the City limit the number of retail Recreational Marijuana establishments?
Recommendation. Staff recommends the City initially cap the number of retail establishments at
the number of Medical Marijuana stores established in the City on October 1, 2013. This will
allow existing establishments to convert and allow the City (and community) to continue to work
with established operations. Staff recommends this initial cap be in place for one to two years,
then reconsidered.
Question. Should the City allow dual location of medical and retail marijuana establishments?
Recommendation. Staff recommends the City initially allow dual location for all facilities,
provided that facilities comply with State law regarding collocation.
LICENSING:
Question. Should the City adopt a local license procedure for retail and medical marijuana
facilities?
Recommendation. Staff recommends the City enact a licensing ordinance for all types of
marijuana facilities that the City intends to allow. Staff recommends specific standards be
adopted by ordinance. These standards can be developed by staff and brought to Council but
would generally follow the requirements for a liquor license.
9.16.13 Work Session: Recreational Marijuana Follow-up
Page 1 of 3
Question. Should the City of Aspen Liquor Licensing Authority be designated as the Local
Licensing Authority for marijuana facilities?
Recommendation: Staff recommends that the resolution discussed above and the subsequent
licensing ordinance designate the Liquor Licensing Authority as the Local Licensing Authority.
Staff also recommends that council direct staff to prepare a resolution for consideration on
September 23, 2013, to advise the State of the entity responsible for licensing should the State
fail to meet its deadlines, as required by Amendment 64. This resolution should also include a
provision that should any application for any marijuana facility be submitted to the City by the
State or by an applicant prior to the effective date of a City Ordinance establishing its licensing
procedures and time, place, manner and number restrictions, those applications will not be
deemed complete and accurate until such time as the licensing ordinance is in effect. A draft of
such a resolution is attached as Exhibit B.
UNLAWFUL ACTS& PUBLIC CONSUMPTION:
Question. Does the City wish to enact an ordinance defining unlawful open and public
consumption?
Recommendation. Staff, after consultation with the Police Department, recommends an
ordinance to address public consumption.
Question. Does the City wish to enact an ordinance defining other unlawful acts?
Recommendation. Staff, after consultation with the Police Department, recommends an
ordinance prohibiting public consumption, underage possession and consumption, sales at the
Saturday market and other illegal acts within the City limits.
PRIVATE CLUBS:
Question. Should the City allow private clubs oriented to the consumption of Recreational
Marijuana?
Recommendation. Staff recommends the City not allow "pot clubs." The law is sufficiently
vague and untested. Staff recommends Aspen not be the testing ground for exploring the
boundaries of the new law.
ZONING LIMITATIONS:
Question. Which areas of the City should allow retail sales of Recreational Marijuana. Which
areas should permit Medical Marijuana sales?
Recommendation. Staff recommends the sale of Recreational Marijuana be categorized as a
retail use and allowed in all areas permitting retail. This would include sales in the SCI zone but
only as 25% of a larger operation, such as growing or manufacturing. Staff recommends
Medical Marijuana sales be classified as a service use.
SCHOOLS BUFFER& SPACING REQUIREMENTS:
Question. Should the City adopt a schools buffer? Which"schools" should be buffered?
Recommendation. Staff does not believe a buffer is critical. The District campus is sufficiently
removed from commercial areas — the closest being highlands at approximately 2,500 feet. So,
adding a buffer from the school campus would be redundant. A 1,000-foot buffer from the
Yellowbrick school affects a large number of properties that do not otherwise appear to be in
9.16.13 Work Session: Recreational Marijuana Follow-up
Page 2 of 3
close proximity, including Main Street from the Jerome to 4`" Street, portions of downtown, and
the Clarks Market property. A buffer is also counter to how pharmacies and liquor stores are
regulated by the City.
Question. Should the City adopt spacing requirements between facilities?
Recommendation. Staff does not believe spacing requirements should be implemented.
Installing a spacing requirement on the fine-grain nature of downtown could result in a de-facto
monopoly where one operation is protected from all other competitors. Unless there is a clear
public purpose, staff does not believe this is necessary.
ZONING FOR CULTIVATION,MANUFACTURING,TESTING:
Questions. Should the City allow for cultivation, manufacturing, and testing facilities? If so,
where? Should these facilities be permitted in residential zones? Should these uses be permitted
downtown?
Recommendation. Staff suggests all five uses be added to the SCI zone as permitted uses. This
is the area of town best suited for quasi-industrial uses. Staff recommends these uses be
provided a definition and specifically not allowed in residential zones or downtown zones.
Staff recommends the City not require special ventilation systems unless these systems are a
requirement of the Building Code. There are multiple permitted uses throughout town with
potential for off-premises effects. The City has not created special building code provisions for
each type of use.
TAXES AND FEES:
Question. What fees should be addressed in any licensing ordinance for marijuana businesses?
Recommendation. Staff recommends that Medical Marijuana facilities be charged an application
and licensing fee comparable to liquor license fees to start. For retail facilities, staff
recommends accepting one-half the state application fees to start. License fees could be
comparable to those charged for liquor establishments. All fees, including the addition of an
operating fee, could be revisited after a year or so of experience in administering and enforcing
any licensing regulations.
9.16.13 Work Session: Recreational Marijuana Follow-up
Page 3 of 3
MEMORANDUM
TO: Mayor Skadron and City Council
FROM: Debbie Quinn, Assistant City Attorney
Chris Bendon, Community Development Director
RE: Work Session: Recreational Marijuana
DATE: September 16, 2013
SUMMARY:
This memorandum outlines several decision points the City of Aspen needs to consider regarding
Recreational Marijuana. During the meeting, staff will provide a general overview of the new State
law, summarize how other communities are proceeding, review the options for each topic, and
discuss the staff recommendations. Staff will also provide a summary of public input on the topic.
Staff is seeking Council direction. Based on the feedback at tonight's work session, staff will
prepare Ordinances for City Council consideration.
OVERVIEW OF STATE LAW:
There have been two constitutional amendments adopted in the State of Colorado concerning
marijuana, putting Colorado in a unique position to lead the nation in the evolution of legalized
marijuana. Whether or not anyone agrees with legalization, the people of this state have
mandated it through the state constitution, and it is now up to the state and those local
jurisdictions that have not chosen to prohibit legal marijuana to regulate its growth, production,
distribution and sale. Because the constitutional amendments, the state laws and state regulations
are voluminous, a summary of them is attached as Exhibit A. Also included on Exhibit A is a
summary of federal guidance on enforcement of its Controlled Substance Act.
PERMITTING RECREATIONAL MARIJUANA SALES:
Background. The constitutional amendments and state laws and regulations referenced above
allow municipalities to decide whether recreational marijuana sales should be permitted within
the municipality. The City took a "hands-off' approach to Medical Marijuana, deciding to treat
the use as a Pharmacy. The City does not regulate the types of products that can be sold in a
pharmacy, how those products can be used, and does not attempt to interpret or apply State or
Federal regulations of the pharmaceutical industry.
The City of Aspen did not require any special licensing of medical marijuana facilities other than
a business license, which is required by the Municipal Code for any business. As of the date of
this memo, there are three medical marijuana operations with business licenses within City
limits. All are located within the Commercial Core zone district and each more than 1000 feet
from a school. All have been in existence and paying sales tax since August or September of
2009.
9.16.13 Work Session: Recreational Marijuana
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Amendment 64 allowing Recreational Marijuana passed statewide with a vote of 55% in favor;
in Pitkin County, the vote was 75.44% in favor. For those precincts (2 and 4) of the County that
are almost entirely in the City, the vote was slightly higher at 75.81% in favor (there was no city-
specific vote count).
Question. Should the City of Aspen allow the sale of recreational marijuana within city limits?
Options. The City has the option to allow or prohibit the sale of recreational marijuana in the
City. A prohibition could be permanent or time-bound. The total number of retail marijuana
stores can also be limited (see next item). The City can allow or prohibit the sale of medical
marijuana as well.
Recommendation. Staff recommends the sale of Recreational Marijuana be allowed and
classified as a retail use, allowed in zones permitting retail operations. This aligns with how the
City regulates liquor sales.
LIMITING THE NUMBER OF RETAIL OPERATIONS:
Background. The City can regulate the total number of retail establishments selling
Recreational Marijuana. This could be useful if there are concerns about a substantial influx of
new establishments or a desire to limit the retail operations to those which have previously sold
medical marijuana.
Current Medical Marijuana stores will have the right to "convert" to retail sales prior to new
establishments opening. The State will begin accepting applications from existing medical
marijuana licensees on October 1, 2013, and will not accept any other applications for retail
marijuana licenses until July 14, 2014. There are three medical marijuana stores currently,
although more could open prior to October Is'. Existing medical marijuana facilities that apply
for a retail marijuana facility license will have to surrender the medical license unless the local
jurisdiction allows dual location of medical and retail facilities. Where dual location is
permitted, state regulations require that there be virtual separation of the two operations, and if
the medical facility continues to sell to those under 21 years of age, there must be a physical
separation as well.
Question. Should the City limit the number of retail Recreational Marijuana establishments?
Options. The City could limit the total number of retail establishments selling Recreational
Marijuana. This limit could mimic the number of Medical Marijuana stores or could be based on
other factors. A limit on the number of stores can be time-bound.
Recommendation. Staff recommends the City initially cap the number of retail establishments at
the number of Medical Marijuana stores established in the City on October 1, 2013. This will
allow existing establishments to convert and allow the City (and community) to continue to work
with established operations. Staff recommends this initial cap be in place for one to two years,
then reconsidered.
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Question. Should the City allow dual location of medical and retail marijuana establishments?
Options. The City could prohibit dual location, could allow dual location only if the medical
facility limits sales to those 21 or over, or could allow with physical separation if the medical
facility wishes to continue to sell to patients under 21. For sales, the state Retail Marijuana
Regulations, rule 304, requires "two distinctly separate Licensed premises; including, but not
limited to, separate sales and storage areas, separate entrances and exits, separate inventories,
separate point-of-sale operations, and separate record-keeping.
Recommendation. Staff recommends the City initially allow dual location for all facilities,
provided that any licensed Medical Marijuana Center prohibit patients under the age of 21 years
from being on the Licensed Premises.
LICENSING:
Background. The City can license both medical and retail marijuana operations. State laws and
regulations contemplate a dual (state and local) licensing of both and prohibit operation of both
retail and medical marijuana facilities without local approval. There are seven different licenses
authorized:
• Medical marijuana center;
• Medical marijuana-infused products manufacturer
• Medical marijuana optional premises cultivation operation
• Retail marijuana store
• Retail marijuana cultivation facility
• Retail marijuana product manufacturing facility
• Retail marijuana testing facility
Although a local "approval" for Recreational Marijuana need not be a "license," the State is
requiring a local license for Medical Marijuana. The local retail facilities licensing regulations
can include time, manner, place and number restrictions; medical marijuana facilities licensing
can include distance restrictions, size of premise restrictions, and any other requirements to
ensure control of premises and ease of enforcement. The licensing contemplated by state law
and the constitution for both medical and retail marijuana must be pursuant to an ordinance
containing specific standards for license issuance.
For retail marijuana, the State will begin accepting applications from existing medical marijuana
licensees on October 1, 2013 and sending copies of those applications for our approval if we
have not prohibited retail facilities. Absent a designation of the approval entity, council is the
approval entity.
Question. Should the City adopt a local license procedure for retail and medical marijuana
facilities?
Options. An approval process that does not involve licensing is possible for retail marijuana
facilities, but for medical facilities the approval must be from a "local licensing authority."
Without licensing and/or local approval, these facilities cannot legally operate in the City. The
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City can determine which of the seven marijuana businesses it wishes to license, and could
choose to prohibit some or all marijuana facilities going forward.
Recommendation. Staff recommends the City enact a licensing ordinance for all types of
marijuana facilities that the City intends to allow. Staff recommends specific standards be
adopted by ordinance. These standards can be developed by staff and brought to Council but
would generally follow the requirements for a liquor license.
Question. Should the City of Aspen Liquor Licensing Authority be designated as the Local
Licensing Authority for marijuana facilities?
Options. Before October 1, 2013, the City needs to designate the entity responsible for approval
of licenses if the state doesn't meet its constitutionally mandated deadlines. The Liquor
Licensing Authority, working with the Clerk's office, is already familiar with a dual licensing
process for liquor licenses. Because the state's dual licensing for marijuana facilities uses the
liquor licensing model, our existing Authority would be familiar with the process. Alternatively,
the City Council, the Clerk, the Manager, or some other entity or person as Council deems
appropriate could be designated.
Recommendation: Staff recommends that the resolution discussed above and the subsequent
licensing ordinance designate the Liquor Licensing Authority as the Local Licensing Authority.
Staff also recommends that council direct staff to prepare a resolution for consideration on
September 23, 2013, to advise the State of the entity responsible for licensing should the State
fail to meet its deadlines, as required by Amendment 64. This resolution should also include a
provision that should any application for any marijuana facility be submitted to the City by the
State or by an applicant prior to the effective date of a City Ordinance establishing its licensing
procedures and time, place, manner and number restrictions, those applications will not be
deemed complete and accurate until such time as the licensing ordinance is in effect. A draft of
such a resolution is attached as Exhibit B.
UNLAWFUL ACTS& PUBLIC CONSUMPTION:
Background. Amendment 64 legalizes the personal consumption of marijuana for persons age
21 or older, "so long as any consumption is not conducted openly and publicly or in a manner
that endangers others." "Openly" and "publicly" are not defined in the constitution, or in the
state regulations or the Retail Marijuana Code. The City may by ordinance define unlawful acts
which can include sales or distribution to minors, consumption-in-public places or on public
property, and consumption within quasi-public places such as restaurants and nightclubs. Staff
has already fielded questions about sales at the Saturday Market. This may not meet the State's
requirements, but a local prohibition may also be necessary.
Prosecution of cases involving marijuana consumption or use have not been a priority with the
District Attorney's Office in our judicial district. So, any desired local control is best handled
through Municipal Court.
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Question. Does the City wish to enact an ordinance defining unlawful open and public
consumption?
Options. A municipal ordinance that prohibits public consumption, similar to the open container
prohibition, would enable a level of local control to assure that the constitutional limitations are
being followed and enforced as needed. The City is not required to adopt such a prohibition.
Recommendation. Staff, after consultation with the Police Department, recommends an
ordinance to address public consumption.
Question. Does the City wish to enact an-ordinance defining other unlawful acts?
Options. Municipal ordinances provide local control to assure that the constitutional limitations
are being followed and enforced as needed. Clarity regarding the Saturday Market will also
assist city staff and the market vendors.
Recommendation. Staff, after consultation with the Police Department, recommends an
ordinance prohibiting public consumption, underage possession and consumption, sales at the
Saturday market and other illegal acts within the City limits.
PRIVATE CLUBS'
Background. The State law seems unclear whether the public consumption prohibition extends
to quasi-public spaces such as restaurants, bars, nightclubs, and membership clubs. The City
Attorney, and attorneys around the State, do not know how the law will be interpreted. A
conservative position on the issue would suggest that clubs are not permitted as they were not
cited in the constitution. As the State and communities gain experience with this new law, this
question will likely be answered through legislative or judicial means. Consumption within
private space, such as a residence, is allowed.
The City currently prohibits private clubs. This is an attempt to prohibit the privatization of
retail spaces downtown as penthouse annexes.
Question. Should the City allow private clubs oriented to the consumption of Recreational
Marijuana?
Options. The City could develop a definition for Marijuana Clubs. This would mimic that of a
Bar or Nightclub and likely require similar local licensing. The City is not required to allow this
use. The City could also specifically add a prohibition in an "unlawful acts" ordinance.
Recommendation. Staff recommends the City not allow "pot clubs." The law is sufficiently
vague and untested. Staff recommends Aspen not be the testing ground for exploring the
boundaries of the new law.
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ZONING LIMITATIONS:
Background. The new State law does not supersede local zoning regulations and the City can
prescribe the location of retail sales of marijuana. Staff considers the sale of Recreational
Marijuana to be most-similar to a Liquor Store. Liquor Stores are categorized as a retail use.
Retail is allowed in the CC, C1, CL, and NC zones. Limited retail is permitted in the SCI, MU
and Lodge zones.
Staff considers the sale of Medical Marijuana to be most-similar to a Pharmacy, which is a
service use. When the issue of Medical Marijuana first arose in 2009, the code was interpreted
for the use to be treated as a pharmacy. The code was never formally amended. Service uses are
allowed in the CC, C1, CL, NC, and MU zones and as a conditional use in the Lodge zone.
Question. Which areas of the City should allow retail sales of Recreational Marijuana. Which
areas should permit Medical Marijuana sales?
Options. Sales of Recreational and Medical Marijuana can be limited to a specific zone district, a
set of zones, or limited to a specific geographical area.
Recommendation. Staff recommends the sale of Recreational Marijuana be categorized as a
retail use and allowed in all areas permitting retail. This would include sales in the SCI zone but
only as 25% of a larger operation, such as growing or manufacturing. Staff recommends
Medical Marijuana sales be classified as a service use.
SCHOOLS BUFFER& SPACING REQUIREMENTS:
Background. The State law prohibits sales of Medical Marijuana within 1,000 feet of a school.
"School" is defined in the State's Medical Marijuana Code to include "a public or private
preschool or a public or private elementary, middle,junior high, or high school."
The State law does not prescribe a school buffer for Recreational Marijuana. In the Retail
Marijuana Code, "school" is defined to include "a public or private preschool or a public or
private elementary, middle,junior high, or high school or institution of higher education."
Experience with Medical Marijuana has included heavy Federal agency enforcement of the
State's 1,000-foot school buffer. Without a State-mandated buffer for recreational Marijuana, it
is unknown whether Federal agencies will expect Recreational Marijuana operations to comply
with a school buffer and to what degree it will be enforced.
Highlands is approximately 2,500 feet from the District campus. A 1,000 foot buffer around the
Yellowbrick would affect 4-5 blocks of Main Street, a few blocks of downtown, and the Clark's
Market property.
Question. Should the City adopt a schools buffer? Which "schools" should be buffered?
Options. A buffer from schools is not required for retail sales. The City could adopt a 1,000-foot
rule, a greater or lesser buffer, or no buffer at all. The City can specifically define the "schools"
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from which a buffer requirement is based. This may be particularly helpful if questions in the
future arise about buffering from the ski school, cooking school, etc.
Recommendation. Staff does not believe a buffer is critical. The District campus is sufficiently
removed from commercial areas — the closest being highlands at approximately 2,500 feet. So,
adding a buffer from the school campus would be redundant. A 1,000-foot buffer from the
Yellowbrick school affects a large number of properties that do not otherwise appear to be in
close proximity, including Main Street from the Jerome to 4th Street, portions of downtown, and
the Clarks Market property. A buffer is also counter to how pharmacies and liquor stores are
regulated by the City.
If a schools buffer is desired, staff suggests either a 500-foot buffer or prohibiting licenses on
adjacent properties (adjacent includes across a street). Staff would also suggest defining schools
as the District campus and the Yellowbrick properties.
In additional to local laws, many businesses in town are subject to State and Federal regulations.
Staff strongly suggests potential Recreational Marijuana businesses become familiar with
applicable State and Federal laws, policies, and practices. Compliance with local regulations
will not mean businesses are impervious to State or Federal regulation.
Question. Should the City adopt spacing requirements between facilities?
Options. Some communities enact "spacing" requirements limiting how close one operation can
be to another. This is typically done with "undesirable uses" and is used when an outright
prohibition is not legally or politically acceptable. A spacing requirement is not required.
Recommendation. Staff does not believe spacing requirements should be implemented.
Installing a spacing requirement on the fine-grain nature of downtown could result in a de-facto
monopoly where one operation is protected from all other competitors. Unless there is a clear
public purpose, staff does not believe this is necessary.
ZONING FOR CULTIVATION,MANUFACTURING,TESTING:
Background. The State allows three additional types of retail licenses — cultivation,
manufacturing, and testing facilities can be permitted or prohibited by the City through zoning
restrictions. Two additional licenses are allowed for medical marijuana — optional premises
cultivation and medical marijuana-infused product manufacturing facilities. These can also be
permitted or prohibited by zoning restrictions.
(Cultivation and Optional Premises Cultivation is the growing of marijuana. Manufacturing
is the alteration of marijuana into products such as "consumables" or "infused products. "
Testing is the inspection of marijuana or products for THC content or other quality-control
aspects.)
The City allows "agricultural uses" in certain zones. Most-notable is the allowance for
agricultural uses in all residential zones as a conditional use (requires a discretionary review).
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Depending on the specific activities occurring and the techniques used, some of these operations
can produce significant off-premises odors. Staff is uncertain how much demand for these
facilities will exist.
Questions. Should the City allow for cultivation, manufacturing, and testing facilities? If so,
where? Should these facilities be permitted in residential zones? Should these uses be permitted
downtown?
Options. These facilities are not required to be permitted and the City's decision on these
facilities can differ from the retail question (the City could permit retail, but not testing; or,
cultivation but not retail.) The City can restrict these uses to specific zones or areas of town or
prohibit one or more of them entirely.
Recommendation. Staff suggests all five uses be added to the SCI zone as permitted uses. This
is the area of town best suited for quasi-industrial uses. Staff recommends these uses be
provided a definition and specifically not allowed in residential zones or downtown zones.
Staff recommends the City not require special ventilation systems unless these systems are a
requirement of the Building Code. There are multiple permitted uses throughout town with
potential for off-premises effects. The City has not created special building code provisions for
each type of use.
TAXES AND FEES'
Background. Fees. The Constitutional and statutory scheme for regulating both medical and
retail marijuana contemplate that local governments can assess fees to cover the costs of
implementation, administration and enforcement of marijuana businesses. Under the Medical
Marijuana Code, local jurisdictions have the specific authority to charge and collect application
fees and licensing fees for medical marijuana businesses.
For retail marijuana facilities, existing medical facilities seeking a retail license will pay a state
retail application fee of$500.00 of which $250.00 will come to the City with a copy of the state
application. New retail facility license application fees (not accepted by the state until July
2014) will be $5000.00, with half that fee coming to the City. Those jurisdictions considering
licensing retail marijuana facilities are proposing license fees comparable to what they charge for
medical marijuana licenses. In addition, for retail facilities, local jurisdictions can charge an
"operating fee" per Amendment 64, defined in the Retail Marijuana Code as fees that may be
charged for costs, including, but not limited to, inspection, administration, and enforcement of
retail marijuana establishments.
Taxes. Existing medical marijuana sales are subject to existing sales taxes, and Aspen has
collected a combined total of over $100,000 in sales tax by the three existing facilities since they
started business in 2009. Retail marijuana will also be subjected to these same sales taxes.
However, there is a ballot issue this November to impose an additional 15% tax on sales from
cultivation facilities, and another 10% tax on retail sales. Local jurisdictions can propose a ballot
measure for an increase in local sales taxes as well, which several local jurisdictions have
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scheduled for this November. Local jurisdictions that allow retail facilities will be getting a
portion of the state 10% sales tax, if it passes.
In Aspen, because we do not yet have any licensing specifically for medical marijuana, the
existing medical marijuana businesses only have to pay the Occupational Tax per Chapter 23.44
of the Municipal Code, with the amount based upon the number of employees, before a business
license issues. For the three existing facilities, that fee has been either $150.00 or $200.00.
Retail marijuana businesses would be required to pay the same Occupational Tax in connection
with its business license.
By contrast, businesses that are licensed to sell alcohol in Aspen are exempt from the Chapter
23.44 occupational tax, as there is a specific occupational tax for these businesses set out in
Chapter 5, at 5.12.030, ranging from $165 for an Arts liquor license to $2025 per year for a
dance/cabaret liquor license. The local liquor license fees are set by the state, $1000 for a new
license, $700.00 for a transfer and other fees for approvals such as renewals and temporary
licenses.
Until the City has experience regulating marijuana businesses, the appropriate operating,
licensing and application fees authorized are difficult to estimate. The Retail Code defines
"operating fees" as fees charged by local jurisdictions, including costs for inspection,
administration and enforcement of retail marijuana establishments. Such fees can be set by
ordinance; any new taxes will require a vote.
Question. What fees should be addressed in any licensing ordinance for marijuana businesses?
Options. The City could choose to require only the application fees from the state for the first
year or charge an additional amount;. It could base licensing fees on comparable fees for liquor
licensing. Operating fees could be deferred until a later time once there is data on actual cost
involved.
Recommendation. Staff recommends that Medical Marijuana facilities be charged an application
and licensing fee comparable to liquor license fees to start. For retail facilities, staff
recommends accepting one-half the state application fees to start. License fees could be
comparable to those charged for liquor establishments. All fees, including the addition of an
operating fee, could be revisited after a year or so of experience in administering and enforcing
any licensing regulations.
CITY MANAGER COMMENTS:
ATTACHMENTS:
Exhibit A— State Law
Exhibit B — Draft resolution
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