Split county vote extends marijuana moratorium

Commissioners wrestle with decision

The glimmer of hope medical marijuana advocates got from the Board of County Commissioners’ decision to delay an extension of a moratorium on the industry last week got a little brighter at a work session Tuesday, June 8 when commissioner Jim Starr made an impassioned argument for their cause. Then the glimmer went out.

Until Tuesday, Starr had stayed the course set by County Attorney David Baumgarten in voting last December to approve the moratorium on medical marijuana dispensaries and grow operations.
Starr agreed that the county needed to wait for some direction from the state on how medical marijuana would be handled. And it looked like he might maintain that position as the recommendation was made in June to extend the moratorium until 2011.
The last time the commissioners discussed the moratorium, there was a lot of uncertainty about how other counties in the state would handle the newly signed pieces of legislation regarding medical marijuana.
Commissioners Starr and Hap Channell came back from a conference of Colorado Counties Incorporated last week, having heard from people on the front lines of the debate with many of the same ideas, but they had a different view of how they would be incorporated into Gunnison County’s regulation of the emerging industry.
Both Starr and Channell said the county needs plenty of time to draft regulations of its own. But Starr was concerned with the ethical implications of extending the county’s moratorium, knowing that extending it past July 1 would keep any potential dispensaries or grow operations from operating for the following year and would keep medicine away from people the state—and its constitution—has given them access to.
July 1 is the start of a state-imposed moratorium on the review of new applications for dispensary and grow operations that don’t already have pending approval, or at least consideration, from a local government to operate.
Commissioner Channell was concerned with the legal implications of accepting applications for a business for which the county has no regulation, and without getting a true feel from the community about whether or not it wants medical marijuana available.
Health and Human Services director Renee Brown attended the conference also and came away with a couple of concerns and some confusion about how the state wants the county governments to move forward.
“It’s something that presents an interesting picture,” she said. “I’ve never seen a situation where you don’t have rules or regulations established before you actually start accepting applications.”
After hearing from Brown and director of Public Health Carroll Worrall, who said they would both like to have more information before making a judgment on the efficacy of medical marijuana in the real world, the commissioners heard from industry advocates.
Similar to past meetings that have been heavily attended by medical marijuana advocates, Tuesday’s work session was a little unorthodox in the way information flowed between the commissioners and the public, occasionally involving raised voices, interruptions and, now and then, a muffled outburst from the crowd.
The advocates’ familiar points were made and then taken by the commissioners, before Starr made a few points of his own, some of which closely followed what had just been said by the public.
“This has been a subject of importance to a lot of people for a lot of different reasons,” Starr said. “I think realistically what the state has enacted at this point will be upheld in court, so I think we have to move forward given that knowledge.”
He went on to explain that he was finding out more people in the county than he had originally thought had “medical marijuana needs,” and those people would have to leave the county to get their medicine, “to exercise that constitutional right.”
“At a point in time where we are looking at people with those medical needs, [not forcing them] to drive out of the county is important to me,” Starr continued. “What I’m going to support here is a position that says, ‘Let’s put something together.’ We can extend our moratorium for a couple more weeks if we need to. But before the July 1 deadline, let’s put something together that enables people to apply under a truncated application.”
He suggested that the county could build enough “bullet-proof language” into the place-holder application to protect the county from any reprisal from suit-happy applicants who don’t like the rules the commissioners come up with, which Baumgarten had warned them about.
But Starr wasn’t advocating a wholesale acceptance of an unlimited number of applications to operate dispensaries and grow operations in the county. Instead he suggested that the county accept placeholder applications for grow operations only from the people who have had dispensaries approved in the municipalities—which is to say Crested Butte.
And he proposed that the county only accept applications for grow operations to keep the retail establishments in the municipalities. Those applications might be something like a shortened version of an already existing land use change application.
“If you were to regulate the grow operations in the unincorporated county, under the existing LUR, a truncated LUR that is a public process, how can we accomplish that when by statute the location of those centers cannot be made public?” Baumgarten asked. “That’s tough to solve in the next two weeks.”
“That’s a difficulty that we’ve got to try to work through if this were to move forward,” Starr responded.
The alternative, Starr believes, could be a situation where too many people would be growing their medicine at home, perhaps under questionable circumstances, or being forced outside the county or onto the black market.
Then there was the economic part of the argument Starr made, saying, “There are people who need work. They need to be able to start a business and I think it can be done in a safe way and I think it can create economic vitality in the valley.”
Starr wasn’t suggesting that the county approve any application for a grow operation right away and repeated the point that he wanted the county to take its time in drafting the right regulations. He just wanted to give the county flexibility to move when it’s ready, instead of waiting for working around a state-imposed moratorium that starts July 1.
“The process for the full application and the determination of whether or not it would be granted would come after the two or three months, or whatever time, that it takes us to come up with our full application process and set of regulations,” he said.
Channell listened to Starr’s argument, then said he agreed with a lot of what was said. But the question of legal liability was the hitch that Channell got hung up on.
“My thought processes are somewhat similar, but there are major differences,” Channell said. “Where I separate from you is on the timing issue. I have real, real concerns about us being able to get some semblance [of a regulation], without taxing our staff to death, in a reasonable amount of time.”
Channell pointed out that it takes months to get amendments to the LUR passed. One amendment being considered has been on the table since last November. He returned to what Renee Brown had said about the accepted order of things— that there are generally standards in place before applications are accepted.
“There is something in my mind that says [Brown’s] right. This is really odd and perhaps to the point of irresponsibility on the part of an elected official, to say that we will accept these placeholder applications and then work out the details,” Channell said. “I guess I’m just not sure if I can agree with that.”
Starr was concerned that waiting until the state has made its rules before starting to form the county’s regulations would put Gunnison pretty far behind in the process, delaying the start of operations even further.
“What I’m trying to do is ensure that if Crested Butte moves forward with their licensing—as everyone anticipates they will—that those centers would be able to grow at least 70 percent of their product here in the county,” Starr said, referring to the sourcing requirements in the new legislation.
Commissioner Paula Swenson wasn’t sure if people in the county had gotten to a point of consensus on the medical marijuana issue, even though a 2004 county-wide survey showed 70 percent of the population was in favor of legalizing pot.
“I don’t think we’ve honestly answered the ‘if’ question—‘if’ we’re going to do this in our community. Unfortunately, we have not had the conversations on this topic that we’re known for having on issues in Gunnison County, holistically,” Swenson said. “If we get past the ‘if’ question, we have to get to the ‘how’ question.”
Swenson also agreed with Channell that making a move on medical marijuana too fast would be irresponsible. “I don’t think we’re being diligent with our positions if we try to shove this through in 14 days,” she said.
With that, the lines had been drawn and the work session was adjourned. Afterward, the regular session started with an executive session and was followed by a position statement from each of the commissioners.
“In my mind, we need to let the state wrestle with their rule propagation and then we in turn react with a much more sane and reasonable fashion,” Channell said. “I think the end result could be the same as [Starr’s] ideas. But I just don’t think it’s realistic to expect us to get anything done in a reasonable period of time.”
Channell offered a resolution to extend the “temporary prohibition” on the use of property in unincorporated Gunnison County for medical marijuana dispensaries or grow operations. The resolution found support from Swenson.
The new language that was added to the moratorium reads, “until the effective date of rules adopted by the Department of Revenue in accordance with House Bill 10-1284, unless terminated by the board.”
The resolution also instructs staff to return to the board with a recommendation for determining if the county would be amenable to allowing grow operations, developing county rules and working with the municipalities.
But Starr held out as the lone vote opposed to extending the moratorium under the adopted resolution.
“I have to respectfully disagree with my colleagues on this,” he said. “We’ve got a situation that involves a constitutional right and now statutory rights. There is an increasing demand in this county that will go unchecked and unregulated for another year. And I feel it’s important that we build our economy in any way we can.”