DA seeks additional regulations for growing medical marijuana

Making local regulations more clear

By Toni Todd

Gunnison County district attorney Dan Hostenpiller presented some weed for thought to the Board of County Commissioners at a recent work session, encouraging them to clarify local regulations pertaining to the cultivation of medical marijuana.

He provided guidance on how the county can ensure local medical marijuana law reflects what the county wants to happen, or not happen, locally. This, in light of new state regulations that take effect January 1, along with some situations that are apparently growing out of control in places like San Miguel County.

Hostenpiller praised Gunnison County for its clear, easy-to-understand regulations regarding all aspects of the recreational marijuana business. “Gunnison’s in great shape,” he said. “There is no immediate action that is required. There is no huge problem going on. In fact, your ordinances in your LUR [Land Use Resolution] are excellent.”

The new state law is good, he said, in that it clarifies the number of plants a person or caregiver is allowed to grow for medical use, and under what circumstances. It also comes with mandatory reporting requirements. On residential property, the limit is 12 to 24 plants, depending on the prescription.

However, the law also allows medical marijuana growers to grow up to 99 plants per property on land not designated as residential, “where marijuana cultivation is allowed by local law.” This, he says, presents challenges, which could be avoided with clear, local regulations for medical pot.

“One of the fundamental aspects of marijuana law has been local control, recognizing communities are different and they should decide,” said Hostenpiller. “But it does create this situation where what might be a crime in Gunnison County might not be a crime in the city of Gunnison, or elsewhere. So literally, if I have a violation, one of the important factors I’ve got to prove is, ‘What does the local law say?’ That depends on whether Gunnison County ordinance does or does not prohibit a particular activity.

“This is not about, ‘Oh, my gosh, we have this huge problem,’” he added. “Rather, it’s about what could happen in the absence of additional regulations pertaining to the growth of medical marijuana.” Case in point: Wright’s Mesa, San Miguel County.

“There were more than 120 of these grows over there,” said Hostenpiller. “It’s medical and they’re not necessarily looking to start a business. Here’s one of those plants.” Hostenpiller showed commissioners a photo of large tree, grown outdoors. He asked them to imagine 99 of them on a single plot of land, possibly adjacent to another 99 on a bordering property, and another, and so on.

“This is not about limiting people’s opportunities to grow marijuana for their own medical use,” said Hostenpiller.

“Because they’re medical, they don’t have to go through the LUR approval process,” clarified Gunnison County manager Matthew Birnie. “That’s what creates the gray area.”

“They’re not locals,” said Hostenpiller of the growers on Wright’s Mesa. “They’re coming from out of state.” As an aside, he added, “They’re also stealing water. So, I just want to make you aware of the potential kinds of problems that can happen. In Gunnison, we haven’t gotten any reports of this kind of stuff, but I think we don’t know what’s out there.”

County commissioner Phil Chamberland suggested one of the reasons Gunnison County has not experienced large outdoor grows in unincorporated areas of the county is the difficulty of cultivating marijuana outdoors here. “But with climate change, that could change,” he said.

“Currently, we don’t address the number of plants for medical marijuana,” said Birnie. “If you don’t have a limit, it will default to the state statute.”

He asked Hostenpiller, “Given that language, ‘where it’s allowed,’ could we have medical grows go through the same regulations we require for recreational grows?”

“Yes, you could,” responded Hostenpiller. “What you can say is that it’s unlawful to cultivate marijuana that’s medical on non-residential property unless you go through our process. Then if people want to go through the process, fine.”

“Then you require them to bring in their prescription,” added deputy DA Jessica Waggoner.

“You might also say, ‘We’re not going to regulate it if it’s 12 plants or less,” said Birnie.

“Yes, and frankly, they’re not the people we’re worried about,” said Hostenpiller.

“We also want to ensure that they aren’t able to grow more than 12 plants on residential property, regardless of whether it’s recreational or medical,” said county commissioner John Messner. “We have legitimate business people here who have worked hard and gone through all the steps required to comply with all the regulations in establishing those businesses, who contribute greatly to our local economy. We want to support those legitimate businesses.”

Hostenpiller agreed. “These guys who are doing this stuff,” he said, pointing to the photo, “those growing 99 trees on non-residential property, are undercutting the legitimate growers.”

Hostenpiller said that what he’s looking for is clarification in the law to make it easier in court and for law enforcement to know what’s legal and what’s not regarding medical marijuana cultivation in Gunnison County. “The San Miguel situation isn’t a problem here now, but we want to ensure the local regulations are clear enough to prevent it and to clear up prospective gray areas in the law.”

Commissioners said they’d consult with the county attorney about drafting additional regulations for restrictions on growing medical marijuana not intended for commercial sale or distribution.