AGENDA ITEM #3.

PLANNING COMMISSION COMMUNICATION FORM

_______________________________________________________________________________
FROM:

Dan Foote, City Attorney (Ext. 223) & Toby Stauffer, Planner (Ext. 280)

THROUGH:

Tyler Gibbs, AIA, Director of Planning & Community Dev. (Ext. 244)

DATE:

August 27, 2015

ITEM:

TXT-15-02: Text Amendment Unlicensed marijuana cultivation uses

NEXT STEP:

Planning Commissions recommendation will be forwarded to the City

Council for first reading of this ordinance on September 15, 2015 and
second reading on October 13, 2015.
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ORDINANCE
RESOLUTION
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MOTION
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DIRECTION
INFORMATION
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PROJECT NAME:

TXT-15-02: Text Amendment Unlicensed marijuana cultivation uses

PETITION:

A Text Amendment to the Community Development Code to add use

definitions for cultivation of marijuana other than by licensed marijuana
businesses and to define the permissible extent of unlicensed marijuana
cultivation as an accessory use.

APPLICANT:

City of Steamboat Springs, Department of Planning and Community

Development, c/o Toby Stauffer, AICP, Planner, 970-871-8280.

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I.

COMMUNITY DEVELOPMENT CODE (CDC) STAFF ANALYSIS SUMMARY

CDC - Section 26-61(D): Criteria for approval. Approval of the amendment shall be granted only if
it appears by clear and convincing evidence presented during the public hearing before planning
commission or city council that the following conditions exist:
Subsection

CONSISTENT
Yes

1)
2)
3)

No

NOTES

NA

Compatibility with the community

plan.
Error or goal/objective.
Public health, safety, & welfare

Staff Finding: Staff finds that the proposed Community Development Code Text Amendment,
TXT-15-02, add use definitions for cultivation of marijuana other than by licensed marijuana
businesses and to define the permissible extent of unlicensed marijuana cultivation as an
accessory use, is consistent with the criteria for approval per CDC Sec. 26-61(D).
II.

BACKGROUND

The CDC currently regulates the cultivation of marijuana by licensed marijuana businesses for
the purposes of commercial sales of recreational and medical marijuana at retail stores and
medical marijuana centers. The CDC also regulates the cultivation of medical marijuana by
primary caregivers in commercial and industrial zone districts and permits cultivation by primary
caregivers as a home occupation in residential zone districts.
The Colorado Constitution permits individuals to cultivate marijuana for personal recreational
and medical use. The CDC does not regulate the cultivation of marijuana for personal use. The
proposed ordinance would create new regulations for personal marijuana cultivation uses and
would modify the existing regulations for the cultivation of medical marijuana by primary
caregivers. These personal and primary caregiver cultivation uses are referred to as unlicensed
cultivation uses to distinguish them from the licensed cultivation performed by the Citys
commercial marijuana businesses.
Staff was directed to draft the proposed ordinance by the City Council after a comprehensive
review of the Citys marijuana regulations. The overall goal is to limit the impact of marijuana
cultivation uses in residential zone districts by limiting plant counts to twelve (12) plants. Larger
cultivation operations would be required to locate in commercial and industrial zone districts.
The Citys licensed marijuana businesses are heavily regulated at both the state and local level
and staff does not recommend modifying the regulations pertaining the licensed businesses.

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III.

DESCRIPTION

The primary changes are as follows:

Private Cultivation
The City treats private cultivation of marijuana for personal use as an incidental part of
residential and commercial uses. In other words, marijuana plants are treated in much the same
way as ordinary houseplants. This approach does not adequately address larger scale marijuana
cultivation due to the increased impacts to neighboring property, increased fire hazards, and the
tendency for marijuana cultivation effectively to become the primary use.
For these reasons, staff proposes to implement a twelve (12) plant count limit for private
cultivation in residential zone districts with the following criteria:
The responsible party must reside at the site of the cultivation;
Cultivation must be in a locked and enclosed area; and
The use must not be perceptible at the exterior of the property.
Larger cultivation operations would be deemed to be commercial and would not be permitted in
residential zone districts. These uses would be accommodated as a proposed new use, Private
Marijuana Cultivation, in the CC, CS, and I zone districts. Staff proposes a plant count limit of
thirty-six (36) plants in CS and CC zone districts; no limit in the Industrial zone district; and the
following criteria:
Applicant must submit a plan for odor control and odors must not be perceptible in
interior spaces of property other than the cultivation site;
The site must satisfy electric, fire, and building code requirements;
The site shall be have a compliant sprinkler system regardless of date of construction or
nonconforming status; and
The site must be inspected by the Fire Marshal for compliance regardless of whether the
project requires a building permit.
Primary caregivers
Staff recommends modifying the Citys regulations regarding caregivers to track the proposed
regulations for private cultivation uses. Caregiver cultivation uses in commercial and industrial
zone districts would be subject to the plant count limits and criteria applicable to the new Private
Marijuana Cultivation use.
Caregivers cultivating in residences would be subject to the plant count restrictions and criteria
applicable to private residential cultivation. This would eliminate the current fire inspection

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requirement for residential caregiver cultivation but would also limit caregivers to twelve (12)
plants in a residential setting. Caregivers would not be permitted to operate as home
occupations.
Other Options
The proposed regulations could be strengthened in the following areas:
Use criteria could be tightened by requiring detailed operational plans and performance standards
addressing the following items:
Required submittal of peak electric load estimates and review of adequacy of electrical
system design;
Mold control and containment plan with testing requirement;
Detailed lists of fertilizer, pesticide, and other chemical use with maintenance and
distribution of Material Safety Data Sheets; and
Plans for containing offsite impacts, such as odor, and prohibition on such impacts being
perceptible offsite.
These criteria track the City of Boulder requirements, which were the most stringent of those
jurisdictions surveyed. The City of Boulder applies these requirements to any cultivation use
exceeding six (6) plants.
This level of oversight is not consistent with existing CDC provisions regarding offsite impacts.
The City relies on the following CDC language to address offsite impacts.
The design and operating characteristics of the proposed development shall
minimize any adverse impacts on surrounding uses and shall not cause a nuisance,
considering factors such as proposed setbacks, planned hours of operation, and the
potential for odors, noise, smoke, dust, glare, vibrations, shadows, and visual
impacts from the proposed development.
The CDC standard differs from the Boulder model in two ways. First, the City does not typically
require an applicant to produce plans for compliance at the application stage. Compliance plans
are generally only required after staff obtains evidence, via a complaint or otherwise, of
noncompliance.
For example, the City recently required detailed plans to mitigate offsite impacts of an outdoor
sawmill use. This requirement was the product of clear evidence of substantial offsite impacts to
adjacent property from this outdoor, heavy industry use. The City does not have evidence of
similar impacts resulting from indoor marijuana cultivation uses.

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Second, the CDC standard requires impacts to be minimized, not eliminated entirely. The
principal application of this standard in the marijuana context would be to odor. Odor impacts in
the commercial and industrial zone districts so far do not appear to be serious enough to warrant
a zero tolerance policy.
In addition, odor mitigation efforts would most likely have to include insulation of exterior walls
and openings, air filtration, and ceiling venting. These improvements can be costly and may
discourage the relocation of larger grow operations from residential to commercial or industrial
settings.
Fire
Mitigation of fire risks associated with private and marijuana caregiver cultivation are a major
policy consideration. These uses create unusually large electric loads and an increased risk of
fire.
The proposed regulations address this issue by limiting the number of plants in residential units
and by requiring commercial and industrial units to be sprinkled and inspected for compliance
with fire, building, and electrical codes.
The proposed regulations do not require the distribution of information regarding pesticide or
fertilizer use. City fire officials do not believe that the materials currently in use present an
increased risk of fire or other hazards to responders.
Enforcement
Staff expects enforcement of the proposed regulations to be a challenge. The City currently has
no way to identify existing caregiver or private cultivation operations other than by receipt of a
complaint.
Caregivers are required to register with the state licensing authority and the department of public
health. These entities will confirm to a law enforcement agency whether a person found by the
agency to be in possession of marijuana and claiming to be a caregiver is a registered caregiver.
They will not otherwise identify registered caregivers who are located in the City and will not
provide the City with a list of caregivers registered in the City. There is no state registry for
private cultivation for personal use.
Consequently, enforcement of the proposed regulations will be complaint driven. The police and
planning services departments will coordinate their responses to marijuana cultivation complaints
in order to ensure both land use and criminal law issues are addressed. Enforcement and
coordination between the planning and police departments in this manner will be a new
responsibility and an increased workload on police and planning and code enforcement staff.
Additional employees, processes, or policies may be necessary to fully implement changes as
described in this report.
Another potential approach is to communicate the Citys requirements by mail to the owners of
property in CC, CS, and I zone districts. The owners of property used for marijuana cultivation

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are jointly responsible with their tenants for compliance with City land use regulations and may
be responsive to educational outreach regarding these responsibilities. This approach would not
entirely eliminate the additional workload and responsibility for city staff resulting from
enforcement of the proposed regulations.
IV.

CRITERIA FOR REVIEW AND APPROVAL

CDC Sec. 26-61. CDC text amendments.

(d) Criteria for approval. In considering any application for amendment to the CDC, the
following criteria shall govern unless otherwise expressly required by the CDC. Approval of the
amendment shall be granted only if it appears by clear and convincing evidence presented during
the public hearing before planning commission or city council that the following conditions
exist:
(1)
Compatible with the community plan. The amendment to the CDC is compatible with and
furthers the community plan's preferred direction and policies.
Staff Analysis: Consistent: The proposed CDC Text Amendment is compatible with the
Steamboat Springs Area Community Plan as there are no goals or policies that conflict
with the proposed text amendment. The amendment is compatible with the envisioned
character of residential, nonresidential and industrial land use classifications, and it
supports the goals and policies in Chapter 3, Land Use (policies 1.1, 1.3, 2.1, 2.2, 3.1, 4.2
Chapter 5, Community Design and Image (goal 1, policies 1.4, 1.5, 2.2, 4.1, 4.2) and
Chapter 10 Economic Development and Sustainability (goal 2, policies 1.2, 1.6, 2.1, 3.1).
The amendment provides guidance for integrating these uses into the City fabric while
seeking input and involvement from the community.
(2)

Error or goal/objective. The amendment to the CDC will correct an error, or will further
a public goal or objective.
Staff Analysis: Consistent: The amendment will further a public objective of providing a
development review process and standards that are clear, efficient, measurable, and
commensurate with impacts of the proposed uses.

(3)

Public safety. The amendment to the CDC is necessary to ensure public health, safety and
welfare.
Staff Analysis: Consistent: The amendment is necessary to ensure the public health,
safety and welfare by requiring a review process and development standards that reduce
negative impacts to the community and adjacent properties.

V.

STAFF FINDING

Staff finds that the proposed Community Development Code Text Amendment, TXT-15-02, to
add use definitions for cultivation of marijuana other than by licensed marijuana businesses and
to define the permissible extent of unlicensed marijuana cultivation as an accessory use, is
consistent with the criteria for approval per CDC Sec. 26-61(D).
VI.

ATTACHMENT:
1. Proposed Ordinance