PUBLIC NOTICE

NOTICE:  Chaffee County Ordinance 2022-01 was duly and unanimously adopted by the Board of County Commissioners of Chaffee County at a regular meeting, properly noticed and held on January 4, 2022, following introduction and reading of the proposed ordinance on December 7, 2021 and publication of the proposed ordinance on December 10th and 15th, 2021 in the Mountain Mail and in the Chaffee County Times.  The Title of Chaffee County Ordinance 2022-01  is as follows:

TITLE:  AN ORDINANCE IMPOSING A TEMPORARY MORATORIUM UNTIL DECEMBER 31, 2023 ON THE SUBMISSION, ACCEPTANCE OR PROCESSING OF APPLICATIONS AND THE LICENSING, PERMITTING OR OPERATION OF ANY RETAIL MARIJUANA ESTABLISHMENT AS DEFINED BY THE COLORADO CONSTITUTION, ARTICLE XVIII, SECTION 16 IN UNINCORPORATED PORTIONS OF CHAFFEE COUNTY (EXCEPT APPLICATIONS AND LICENSES WITH RESPECT TO CERTAIN EXISTING MARIJUANA ESTABLISHMENTS), INCLUDING THE USE OF LAND FOR SUCH PURPOSE OR PURPOSES.

At the January 4, 2022  meeting and following initial publication of Chaffee County Ordinance 2022-01, the Board of County Commissioners of Chaffee County approved the previously published ordinance, to read as follows: 

CHAFFEE COUNTY

ORDINANCE NO. 2022—01

TITLE:  AN ORDINANCE IMPOSING A TEMPORARY MORATORIUM UNTIL DECEMBER 31, 2023 ON THE SUBMISSION, ACCEPTANCE OR PROCESSING OF APPLICATIONS AND THE LICENSING, PERMITTING OR OPERATION OF ANY RETAIL MARIJUANA ESTABLISHMENT AS DEFINED BY THE COLORADO CONSTITUTION, ARTICLE XVIII, SECTION 16 IN UNINCORPORATED PORTIONS OF CHAFFEE COUNTY (EXCEPT APPLICATIONS AND LICENSES WITH RESPECT TO CERTAIN EXISTING MARIJUANA ESTABLISHMENTS), INCLUDING THE USE OF LAND FOR SUCH PURPOSE OR PURPOSES.

Recitals

A. On November 6, 2012, the voters of the State of Colorado adopted Amendment 64 of the Colorado Constitution (“Amendment 64”), which is codified as Article XVIII, § 16 of the Colorado Constitution.

B. Amendment 64 permits persons twenty-one years of age and older to possess, use, display, purchase or transport marijuana accessories or one ounce or less of marijuana, to grow limited amounts of marijuana, and manufacture and sell marijuana accessories.

C. As authorized by Amendment 64, the State Legislature enacted the Colorado Marijuana Code, C.R.S. §§ 44-10-101, et seq.

D. Amendment 64 and C.R.S. § 44-10-104(3) provide that counties may choose to prohibit or license recreational marijuana establishments that sell, cultivate, manufacture, prepare, package, purchase, test or otherwise provide for or allow the use of marijuana or marijuana products.

E. The following provisions also give the County authority to impose temporary bans on such activities: 

a. The Local Government Land Use Control Enabling Act, C.R.S. § 29-20-101, et seq.; C.R.S. § 30-11-101(2) concerning the authority of counties to adopt and enforce ordinances and resolutions regarding health, safety and welfare issues as otherwise prescribed by law;

b. C.R.S. § 30-11-107 concerning powers of the Boards of County Commissioners;

c. C.R.S. § 30-28-101, et seq. concerning the regulation of the use of structures in various zone districts throughout Chaffee County; and

d. C.R.S. § 30-28-115 concerning the promotion of the health, safety, convenience, order and/or welfare of the citizenry through the use of land use regulations.

F. The Board of County Commissioners (“BoCC”) has authority to exercise all County powers for the unincorporated areas of Chaffee County pursuant to C.R.S. § 30-11-103.  Pursuant to C.R.S. § 30-15-401, the BoCC has the general enabling power to adopt ordinances for the control or licensing of those matters of purely local concern, and to do all acts and make all regulations which may be necessary or expedient for the promotion of the health, safety and welfare of the present and future residents of Chaffee County.    

G. The Land Use Act (C.R.S. § 29-20-101 et seq.) and the County Planning Code (C.R.S. § 30-28-101, et seq.) and other authorities listed in Section 1.1.2 of the Chaffee County Land Use Code authorize county regulation of land use in the unincorporated areas of the county.

H. The current Chaffee County Land Use Code (“LUC”) was adopted pursuant to Ordinance 2014-01 and became effective in February 2014.  Following its adoption, the BoCC approved various amendments and corrections to the LUC pursuant to Resolutions 2014-38, 2014-51, 2015-24, 2016-04, 2016-13, 2016-24, 2016-42, 2016-49, 2016-51, 2016-52, 2017-01, 2017-22, 2017-29, 2017-42, 2017-51, 2017-54, 2017-55, 2017-67, 2017-72, 2017-73, 2018-02, 2018-25, 2018-34, 2019-34, 2019-51, 2020-25, 2020-26, 2020-61, 2021-33 and 2021-60. 

I. The LUC was last substantively updated in 2014, with several, mostly minor, amendments since. Chaffee County has experienced an approximately 30% growth in its population over the last 20 years and recent demographer forecasts predict greater than 25% population increase over the coming three decades. The County’s current LUC is not adequately structured to address the recent changes in development patterns, community needs, and population growth trends of Chaffee County’s lands and communities. Additionally, the Chaffee County Comprehensive Plan was adopted in December of 2020, and offers a contemporaneous guiding framework that addresses the current and anticipated future needs of Chaffee County, including an updated land use code that specifically addresses a new zoning code allowing for a mix of development types and densities. To develop an updated LUC reflective of the guiding principles and priorities outlined in the 2020 Chaffee County Comprehensive Plan, the County engaged a firm in December 2021 to lead the overhaul of the LUC. The LUC rewrite project is anticipated to commence in January 2022 and the County is targeting mid—2023 for completion and adoption of the updated land use code.

J. Currently, LUC § 7.8.22 establishes the standards for Medical and Retail Marijuana Facilities.  However, the County has previously placed moratoriums on Medical and Retail Marijuana because of ongoing concerns, including but not limited to, updating codes regarding local licensing and enforcement, enforcement of local and state regulations, monitoring and control of odors and the limited number of industrial zones within unincorporated Chaffee County.

K. Without an updated land use code and licensing requirements potential new marijuana establishments in the County will create issues with enforcement, monitoring and zoning conflicts that the County’s current rules, regulations and ordinance do not adequately address.   It is anticipated the updated land use code will address the aforementioned issues with marijuana establishments in unincorporated Chaffee County.  If necessary, the new land use code will guide the County in creating a new regulatory and licensing process for marijuana establishment in unincorporated Chaffee County.

L. Because the County does not have adequate current regulations with respect to the potential number of marijuana establishments and the current concerns regarding odor, enforcement and zoning compatibility, the County will suffer irreparable harm if a  temporary moratorium on the establishment of new businesses is not imposed. The ban contains certain exceptions which allow for licensing of retail cultivation and manufacturing establishment in the Industrial Zone.  Prior to the County imposing prior bans, licenses were granted to six establishments.  Currently, one of the six holds both recreational and medical licenses, two hold just recreational licenses, the other three, including a grandfathered operation, have relinquished their licenses or let them expire.

M. In light of the foregoing, the BoCC determines that circumstances warrant the immediate enactment of a temporary moratorium on submission, acceptance, or processing of applications and the licensing, permitting or operation of retail marijuana establishments described under Amendment 64, to protect and promote the public health, safety, and welfare and to avoid the establishment of new businesses which may contravene the results and purpose of any proposed amendments to the LUC and or amendments to local licensing requirements. 

N. The duration of the ban imposed by this Ordinance is reasonable in length and is no longer than required for the County to properly review and adopt a new land use that addresses issues surrounding the cultivation and processing of marijuana under applicable law and if appropriate, adopt and implement any regulations deemed necessary with respect to businesses that cultivate, process and dispense marijuana.

BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF CHAFFEE COUNTY COLORADO:

Section 1. The foregoing recitals are incorporated herein and made a part of this ordinance.

Section 2. Except as set out in Section 4, a ban is hereby imposed until such date as the BoCC duly adopts regulations or December 31, 2023, whichever is earlier, on the submission, acceptance, or processing of applications and the licensing, permitting or operation of any retail marijuana establishment that sells, cultivates, manufactures, prepares, packages, purchases, tests, or otherwise provides for or allows the use of marijuana or marijuana products pursuant to Amendment 64 approved by the voters of the State of Colorado at the November 6, 2012, general election and codified as Article XVIII, § 16 of the Colorado Constitution, and upon the use of land for such purpose or purposes.

Section 3. During the pendency of this ban, Chaffee County staff shall review all laws and regulations enacted by the state or actions of the federal government regarding retail marijuana establishments and advise the BoCC of the same, and, if so directed by the BoCC, prepare regulations including but not limited to regulations governing the time, place, manner, or number of retail marijuana establishments.

Section 4.

4.1 This ordinance shall apply within the unincorporated territory of Chaffee County, but the ban imposed in Section 2 shall not apply to the following activities conducted by retail marijuana cultivation or manufacturing facilities that already have retail marijuana cultivation or manufacturing facility licenses that are in good standing with Chaffee County and the State of Colorado at the time of the activity and that have not lapsed:   

a. Application for a renewal license for a retail marijuana cultivation or manufacturing facility. 

b. An expansion in the number of plants allowed within an existing footprint on the same parcel.

c. An expansion of the operation’s footprint on the same parcel (such as adding a new building to an existing location).  Such an expansion would require a new license with the County, subject to Section 4.2. 

d. A geographic expansion (such as expanding operations onto additional parcels) of a retail marijuana cultivation or manufacturing facility.  Such an expansion would require a new license with the County, subject to Section 4.2.

e. Conversion of a license from medical to recreational or the addition of a different type of license other than retail sales (for example, adding a manufacturing facility license to an operation that currently has a cultivation license).  To the extent such a conversion or addition results in an expansion of the operation’s footprint or a geographic expansion, a new license with the County may be required, subject to Section 4.2.

f. Transfer of an entire operation to a new owner (a transfer of part of the operations is banned under Section 2).

4.2   For purposes of processing allowed applications involving allowed activity as set forth in Section 4.1, the “Local Licensing Authority” as that term is defined by C.R.S. § 44-10-103(28), shall be the same as the Local Licensing Authority under the  Chaffee County Medical Marijuana Business Licensing Regulations adopted pursuant to Resolution 2012-28 (as amended from time to time) (the “MMJ Regulations”).  An excepted facility seeking to be licensed under Section 4.1 must do so under the standards set forth in the MMJ Regulations.  

Section 5. This ordinance shall in no way limit application and enforcement of any statutes of the State of Colorado but shall be in addition thereto.

Section 6. It shall be unlawful for any person to violate any provision of this ordinance.

Section 7. This ordinance may be enforced by any law enforcement officer or any other persons or positions designated by the BoCC as enforcement officers under this Ordinance.

Section 8. Pursuant to C.R.S. § 30-15-402, any arresting law enforcement officer enforcing this ordinance is authorized to utilize the penalty assessment procedure provided in C.R.S. § 16-2-201.

Section 9. Any person or entity that violates this ordinance shall be guilty of a class 2 petty offense.  The fines, penalties and surcharges set forth in C.R.S. § 30-15-402 (as amended from time to time) shall apply to each separate violation.  Unless otherwise provided by law, all fines and penalties, and the surcharge thereon, for the violation of this ordinance shall be paid to the treasury of the County.

Section 10. This ordinance shall be liberally construed so as to further its purposes.

Section 11. If any portion of this ordinance is held to be invalid for any reason, such decision shall not affect the validity of the remaining portions of this ordinance.  The BoCC hereby declares this ordinance to be severable and further declares that it would have passed this ordinance and each part hereof irrespective of the fact that any one part be declared invalid.

Section 12. This ordinance relates to the regulation of a controlled substance under federal law and the adoption of this ordinance is necessary for the immediate preservation of public health, safety and welfare and shall be effective upon adoption.

Section 13. All other ordinances or portions thereof inconsistent or conflicting with this ordinance or any portions hereof are repealed to the extent of such inconsistency or conflict.  This Ordinance is intended to replace Ordinances 2013-02, 2014-02, 2015-01, 2016-01, 2018-01, 2019-01, 2020-01 and 2021-01.

Published in The Chaffee County Times January 13, 2022

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