County considers land use laws and marijuana industry

Pondering hybrid approach to regulation

After wholly banning marijuana facilities in unincorporated Gunnison County last fall, county officials are now taking steps to develop regulations allowing for the cultivation, testing and manufacturing of both retail and medical marijuana within the community.
The move should not come as a surprise. The county’s September decision to ban the cultivation and associated processing of the drug was directly related to its desire to maintain local control over the regulatory process at a time when the state was ready to take control, said county attorney David Baumgarten.

By opting out of state regulation and placing the ban, the county essentially bought itself some time to determine how and where the legalization of marijuana would be most suitable and profitable.
In keeping step with this move, the Gunnison County Board of Commissioners directed county staff to investigate viable options for the production and sale of marijuana in the county. Included in this was a request for more information related to potential locations of facilities, and the impact such facilities might have on local land use regulations.
“We would like to look at grow operations first, and consider their presence in the county before we start looking at manufacturing and retail sale,” said County Commissioner Paula Swenson. “The idea is that we could create a phased process for acceptance based on what’s appropriate for the county.”
This is exactly what the county staff has done.
Beginning on January 1, Gunnison County community development director Russell Forrest led staff in the collection of information related to creating a local marijuana infrastructure. He has traveled to several communities throughout Colorado that have legalized cultivation and manufacturing and has visited several facilities where state-approved testing occurs.
“These testing facilities are essentially scientific laboratories,” said Forrest. “There are chemists and professionals on staff, and they’re working in a very controlled environment.”
After conducting these site visits and poring over hundreds of pages of regulating documents from other Colorado counties, Forrest came back to the county last week with a list of observations about what the fledgling marijuana industry looks like elsewhere and what it could look like in Gunnison County.
“We know that this is a very dynamic area and it’s evolving quickly,” said Forrest. “It is turning into a big business right now, and our goal is to frame a couple of the broad issues we see for the county, then prepare a couple of specific regulations.”
Up first in Forrest’s discussion with the county, which occurred during a February 11 work session, was the operation and establishment of facilities suited for cultivation. His research showed that most commercial cultivation in Colorado is going on indoors with highly sophisticated lighting, fertilizing, watering and venting systems. In addition, he found that while there is some desire by growers to move toward greenhouse and outdoor facilities, concerns over weather and security exist and these would be heightened under those circumstances.
“Security issues are very significant. There are concerns about cartels and organized crime. Everything is tracked from seed to point of sale,” said Forrest. “While outdoor planting is not specifically prohibited it is not practical when attempting to meet security standards placed by the state.”
In visiting cultivation businesses, Forrest found that most growers typically did not want their neighbors, or people passing by, to know what was happening behind closed doors.
He told the commissioners, “Marijuana cultivators typically don’t want to be seen, heard or smelled from a security standpoint. Cultivators appear to want to have low visibility in terms of the physical location of their facilities.” In addition, Forrest said, many cultivation facilities opt not to put up signs announcing their presence and take extreme measures to install proper ventilation and filtering systems to reduce and eliminate any noticeable odor from the growing plants.
“Walking into these places, I really couldn’t smell anything,” Forrest told the commissioners.
According to Forrest, the manufacturing businesses he visited had characteristics similar to the cultivation sites: a lack of signage, tight security and professional staff. He found these facilities were most appropriate in light industrial/heavy commercial areas with access to improved utilities and circulation.
“These facilities are somewhat similar to a food processing facility,” Forrest said. “For all practical purposes they are comparable to a large commercial kitchen.”
Last on Forrest’s list of site visits were the commercial testing facilities where the purity, quality and potential potency of marijuana products are judged. In his report to the commissioners Forrest wrote, “It appears that with new regulations related to recreational marijuana that testing will be needed for both cultivation and marketing facilities. From a land use standpoint these facilities are laboratories and consistent with light industrial and heavy commercial land uses.”
So in a nutshell, Forrest found that Colorado’s burgeoning marijuana industry may require access to agricultural land, land zoned for industrial use and commercial property. Based on this, he suggested Gunnison County consider the licensing framework and land use regulations currently being used to manage marijuana in other communities throughout the state.
“There are three basic options being used,” he said. “One, apply land use regulations to control marijuana facilities; two, use a licensing process similar to a liquor license to control facilities; and three, develop a hybrid of one and two.”
Of these options, the Board of County Commissioners seemed most interested in pursuing the third option—using the existing land use regulations to determine preferred sites for marijuana-related businesses, then incorporating the licensing, monitoring and training requirements that are often associated with liquor licensing in the state.
“We don’t have traditional zoning so we don’t have areas that are designated as agricultural areas,” said Swenson. “We do have some developed industrial park areas that are under county management that may be appropriate. We can set the allowable use in those areas, and in doing so may be able to identify preferred areas.”
In order to continue moving the discussion along, Forrest provided the Board of County Commissioners with a list of performance standards that could be used in a licensing process and could also be integrated into land use regulations. This list is available at gunnisoncounty.org. The county commissioners will follow up with this list at a later meeting.