“Rest on your moratorium for a while”
Gunnison County is going to wait and see what the state, other counties, municipalities and the dispensaries are going to do or need before taking on any regulatory initiative over the emerging medical marijuana industry.
County attorney David Baumgarten has been keeping a list of what other counties are doing, and so far the column for counties drafting regulations is empty.
“Of the counties that have responded, there is a host that have enacted a moratorium on optional premises cultivation,” Baumgarten told the commissioners on Tuesday, August 10. “Remember, we’re now not talking, with reference to you, about dispensaries. We’re only talking about what the law calls optional premises cultivation, or grow operations.”
The commissioners have already closed the door on dispensaries in the county, saying Gunnison’s unincorporated area has never been a place for retail operations, dispensaries included.
But before they will approve a grow operation, the commissioners and county planners will have to figure out where it might be appropriate to put the operations. Since there is no traditional zoning in Gunnison County, identifying those places will likely take some time.
Then there are the regulations to draft and, as Swenson pointed out, “The way the [Land Use Resolution] is set up, we would have to go through the process of designating a Special Geographic Area,” where distinct rules apply. That would take even more time.
And the commissioners couldn’t recall a letter that was reportedly sent from the town of Crested Butte. The letter was said to be a request that the county allow grow operations at the Riverland Industrial Park that would service the dispensaries in town.
Commissioner Paula Swenson said regardless of any request from the town, the commissioners haven’t even spoken with the Riverland board of directors or asked the owners in the subdivision to change their covenants to accommodate the new land use, even though the county is considering it to be an “appropriate area.”
The county would also like to see what others are doing before charging off into its own process of writing regulations. But the regulation of grow operations is not as high a priority for other counties in the state, or the state itself.
So Baumgarten has been looking outside the state, to California and Canada, where politicians and attorneys have more experience with the issue of regulating grows. What he found was a host of concerns from fire fighters, building and health inspectors that were unaddressed in the municipal regulation that does exist.
“We would have to deal with grow operations in a way we deal with no other land use change in Gunnison County,” Baumgarten said, adding that he would like to see a combination of a prescriptive regulation that tells people what to do, and a performance regulation, which allows people to prove only that they are meeting county requirements.
“If you ask staff to go forward with writing regulations, [the regulations] should be a hybrid of both, because we don’t have the expertise on staff to develop any kind of prescriptive regulation [of this industry],” he said.
Baumgarten is also looking at ways the county might realize some financial benefit from hosting grow operations. He’s finding out that there aren’t many opportunities for counties to impose a tax of any kind.
Instead he is watching a growing number of people interpret the state’s medical marijuana legislation to say that a single municipality can license all stages of the medical marijuana market, from the grow to the shop.
If that turns out to be the prevailing interpretation, which can only come from the courts or the legislature, there might be some revenue-sharing opportunities for the county. That would require an agreement with the town of Crested Butte, which is still only collecting sales tax from the dispensaries.
Baumgarten also said the county cannot charge fees of much more than the cost of the doing business, like filing the papers and staff time.
Tuesday, Baumgarten’s recommendation to the commissioners was simple: wait. Wait for a “demonstration of public need,” meaning when the dispensaries have a hard time finding product to sell, the county will develop regulations to allow the operations. Wait for the state to develop “foundational regulations.” Wait to see what others are doing.
“You may want to just rest on your moratorium for a while,” he said, adding that there would be little need to meet again on the subject in the next couple of months.