City of Brighton
500 S. 4th Avenue
Brighton, CO 80601
Meeting Minutes - Draft
Tuesday, February 3, 2015
7:00 PM
Amended
Council Chambers
City Council
MAYOR - RICHARD N MCLEAN
MAYOR PRO-TEM - KIRBY WALLIN
COUNCIL MEMBERS:
LYNN BACA, REX BELL, JW EDWARDS
MARK HUMBERT, JOAN KNISS, KEN KREUTZER
CYNTHIA A MARTINEZ
1. CALL TO ORDER
Mayor McLean called the meeting to order at 7:02 p.m.
A. Pledge of Allegiance to the American Flag.
Visiting Boy Scouts led the recitation of the Pledge of Allegiance to the American Flag. Each of the scouts introduced themselves and was welcomed by City Council.
B. Roll Call.
Present: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca,
Councilmember Bell, Councilmember Edwards, Councilmember Humbert,
Councilmember Kniss, Councilmember Kreutzer, and Councilmember
Martinez
2. CONSENT AGENDA
A. Approval of the January 6, 2015 City Council Minutes
City Clerk Natalie Hoel read the Consent Agenda into the record.
Motion by Councilmember Kniss, seconded by Councilmember Kreutzer, to approve the
Consent Agenda as presented. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
3. APPROVAL OF REGULAR AGENDA
City Manager Esquibel explained that the Amended Regular Agenda includes an Executive Session.
Motion by Councilmember Humbert, seconded by Councilmember Bell, to approve the Regular
Agenda as amended. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
4. CEREMONIES
A. Introduction of New Employees by Human Resources Director Karen Surine
Human Resources Director Karen Surine introduced Cory Brown, Street Maintenance Worker I, Karla
Armstrong, Accountant II, Lauren Simmons, Senior Planner, Amy Coffey, Administrative Assistant,
Melinda Weatherholt, Community Resource Liaison for Youth Commission, and Quetzally
Castel-Carmona, Administrative Assistant II.
Chief of Police Clint Blackhurst introduced Lindsey Williams, Victim Advocate, Julie Enwall, Victim
Advocate, Erica Schwartzkopf, Police Officer and Chris Meachum, Police Officer.
Mayor McLean and City Council welcomed the new employees to the City of Brighton.
5. PUBLIC INVITED TO BE HEARD ON MATTERS NOT ON THE AGENDA
(Speakers limited to five minutes)
Les Fraley, 14065 County Road 2, Brighton. Mr. Fraley expressed his concern regarding the safety,
speed limit and number of traffic accidents on Road 2 from 19th Avenue to Telluride Street.
6. ORDINANCES FOR INITIAL CONSIDERATION
A. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRIGHTON,
COLORADO ADOPTING A NEW ARTICLE 9-32, MARIJUANA CULTIVATION
WITHIN RESIDENTIAL STRUCTURES FOR THE BRIGHTON MUNICIPAL CODE
REGARDING INDOOR CULTIVATION AND PROCESSING OF MARIJUANA BY
INDIVIDUALS; AMENDING SECTION 9-28-20. DEFINITIONS, SECTION 9-28-20,
DRUGS AND PARAPHERNALIA, AND SECTION 9-28-80, PENALTY FOR
POSSESSION; AND SETTING FORTH DETAILS IN RELATIONS THERETO
Mayor McLean read the title of the Ordinance into the record.
City Manager Esquibel introduced Long Range and Historic Preservation Planner Aja Tibbs.
Long Range and Historic Preservation Planner Aja Tibbs explained that this is a Municipal Code
Amendment regarding Marijuana Home Grow and this is the first reading. Planner Tibbs entered her
staff report (attached as Exhibit A) and her presentation (Attached as Exhibit B) into the record.
Planner Tibbs reported that she will give some background on this issue and review the State laws related to the legalization of Marijuana. Amendment 20 allows the possession and cultivation of marijuana for medical treatment purposes the caregivers required to be licensed through the State for possession, use or cultivation. The Amendment allows possession of up to 2 ounces of marijuana and allows the growth of up to six (6) plants. There are some exceptions that will allow more plants as needed for medical purposes depending on requirements from a doctor. This use is allowed for those ages eighteen (18) or older and some provisions for minors with guardian consent if the medical reason justifies it. There are also regulations in Amendment 20 that address Medical Marijuana Centers which are currently prohibited with the City of Brighton's adoption of Ordinance 2086.
The State passed Amendment 64 which allows for possession and cultivation for recreational
purposes. It allows a person to possess up to one (1) ounce of marijuana and grow up to six (6) plants.
A person must be twenty-one (21) years or older to have marijuana for recreational use and it must be
grown in an enclosed and locked space. Consumption cannot be conducted openly or publicly and
cannot be done in a manner that will endanger others. There are also regulations that address retail
marijuana but these are prohibited in the City of Brighton by Ordinance 2156.
The City of Brighton has adopted two (2) Ordinances that address marijuana. Ordinance 2086 was
established in March, 2011. By State legislature the City is allowed to adopt regulations to prohibit
certain allowances provided for in the Amendment. Ordinance 2086 prohibits Medical Marijuana Centers, Optional Premise Cultivation operations, and Medical Marijuana Infused Products Manufacturers. After Amendment 64 passed, the City of Brighton adopted Ordinance 2156 in July, 2013 and it prohibits Retail Marijuana Stores, Marijuana Cultivation Facilities, Marijuana Product Facilities and Marijuana Testing Facilities. These Ordinances address the commercial and industrial side of marijuana use but does not address the personal use of marijuana. The Amendments do allow personal cultivation and use and there is not currently anything in the Brighton Municipal Code that establishes any type of regulations outside of what the State has already adopted. The existing Ordinances do not address home cultivation legalized for medical caregivers through Amendment 20 or for personal use through Amendment 64.
There are unresolved issues in the current State regulations. Some of these issues arise with local law
Enforcement. It is difficult to get issues or violations at a local level addressed in the County Courts. If
there are local regulations these issues can be taken through the local court and can be addressed
more efficiently and quickly for the local law enforcement. The State regulations are not very specific and it would help to have clarification of the rules. There can be issues where it is difficult to enforce or
determine how things should be interpreted or clarified, what areas are appropriate, and where it is
appropriate for marijuana to be grown. There are also health and safety issues that are arising. If an entire residential unit is converted to a cultivation area that unit probably would not be considered a
residential property. This becomes an issue for the neighbors and the community. It becomes an issue
if the property is sold and there are mold issues in the building. There are real health and safety concerns related to marijuana cultivation in a residential unit.
Other communities are having some of the same problems. There are approximately twenty (20) different municipalities that are taking action and establishing their own regulations to address home grows and how it might be limited, areas, how to clarify the Amendments and regulations and what to do in order to address these discrepancies at a local level.
Staff presented these issues to City Council to receive direction if staff should move forward with local
regulations. Staff did receive direction from Council to create regulations that are reasonable, not
overly invasive, do not invade people's privacy in their own homes, but would balance the health
and safety issues that can arise from marijuana use. Staff worked closely with several departments that will be working closely with this issue to draft the Ordinance, including Chief of Police Clint Blackhurst, Chief Building Official Matt Rowland, the Fire Department and Legal Counsel.
The first regulation in the draft Ordinance requires that all of the processes of cultivation, storage and
drying have to occur on a residential property of primary residence either within the home or within an
accessory structure. The accessory structure can be a detached garage, shed or any kind of structure
that is separate from the primary residential structure. These areas have to be fully enclosed and
locked. There is also a provision which requires that the cultivation be done either by the owner on
their property or by written consent of the owner. This helps to assure that a property owner
does not have renters doing cultivation on their property without the property owner's consent. The
written permission document must be on the premises in case there is someone questioning the right to use the property for this purpose. It is not the City's responsibility to obtain the consent.
The limits for the cultivation area that is being proposed is 50 sq. ft. for a single-family detached
structure, 35 sq. ft. for a multi-family attached structure (residential unit), and an additional option for
50 sq. ft. for a detached accessory structure. Those can be combined depending on the property so a
single-family residential with a detached structure could total 100 sq. ft. and a multi-family property or
unit with a garage there can be combined up to 85 sq. ft. Some municipalities are concerned with the
height requirement, but staff is more concerned about what is growing up against the ceiling which can
cause mold growth, so there is a 24" clearance that must be met.
The marijuana cannot be perceptible to the exterior of the property which is consistent with State
Regulations. It needs to be grown, cultivated and used privately. The amount that can be grown has a
lot to do with the lighting used so a lot of people like to use industrial type lighting fixtures which are not safe for residential properties so the lighting requirements have been limited to residential type lighting like LED and florescent lighting which will help the plants to grow but will not be unsafe in a residential home. Staff requires that a kitchen, bathroom or an occupied bedroom not be used for cultivation in order to keep the home a useful residential property. The marijuana must also be kept so that children do not have access to it. If for any reason a chemical needs to be used in the drying process it must not be stored in an accessible area. The marijuana must also not create an odor that will impact surrounding properties. There have been several questions of whether marijuana can be grown in a common space if it is locked and closed but can be accessed by others. It is not appropriate to have marijuana in a common area. If a person has a home occupation permit that involves the presence of a child, cultivation must not be done onsite. At this time, marijuana concentrate is banned entirely from any production on residential property. Each of these regulations will be determined as a criminal offense and punishable by Article 1-24 of the Municipal Code.
Currently what is being proposed will not require a permit for the personal cultivation of marijuana. This
choice was made because a permitting process would be a significant burden on staff to require a
permit. There are currently over 12,000 residential units in the City of Brighton; without having the ability to know how many people would apply for a permit, it could be a significant influx of work for current staff. Direction was received from Council to avoid privacy issues such as going into people's homes and knowing what their lifestyle choices are. Those privacy issues could be violated if a permit is required, and the City has a public record of marijuana in the home. This requirement could also discourage compliance with the regulations. There could be a requirement to obtain a permit and there are other communities that require one and they use the permits to track where marijuana is grown. This would ensure those that are permitted to have inspections and assure that they are meeting the regulations.
Deciding on the cultivation area is a difficult decision because it depends significantly on the person
you are speaking to or the size of the home and their preferences where they want to grow. Staff is
proposing 50 sq. ft. for single-family detached, 35 sq. ft. for single-family attached and optional 50 sq.
ft. for a detached structure. Staff chose the smaller 50 sq. ft. instead of the 100 sq. ft. option since
there is not a permit required. Without requiring a permit there is no building inspector going into the
home to check on the ventilation system, odor control, or how the marijuana is grown in the home. By
requiring a smaller area there is less likely to be negative impacts that would be created by a larger
grow area. A smaller area would have fewer health and safety impacts that would require an
inspection. The accessory structure option was added to allow for larger growth areas which will give a
medical care giver the option to grow more, or for multiple adults to grow more plants. This also puts
the impact of the cultivation to two (2) structures. Utilizing the detached structure means that nobody is
sleeping or living in the structure, which has less impact than would be in a single-family home. An
alternative would be to increase or decrease this amount. Larger areas may create more of a nuisance
and there could be more health and safety impacts and a smaller area might be determined to be
restrictive for those that may be growing for multiple patients or with multiple adults in the home and
can grow more than six (6) plants.
Marijuana concentrate is an extremely complex subject. Staff is proposing to completely ban the
production of marijuana concentrate in residential units at this time. There is very serious life
threatening safety concerns with the production of this, even by small or minor mistakes. The State has come out and said that they may even believe that this was never approved through the Amendment [64] to begin with and they certainly have not comprehended the use of marijuana concentrate in the previous amendment [20]. There may be additional legislation that addresses marijuana concentrate. An alternative is to approve certain methods that may be appropriate or to allow it with a certain permit or certification as other municipalities have done. There have been some methods that have been adopted by other communities and have had negative effects. The Fire Department has limitations on regulations that they can place on residential homes or licensing anyone to do anything in a residential home so this is not a route that staff can take either.
Staff realizes that this is an issue that affects neighbors so although this is not a public hearing, staff published in the newspaper and posted on the website that this ordinance would be taking place this evening. At this time no formal comments have been received from the public.
Staff overall recommends approval of the draft Code Amendment with any input or revisions
that Council may have. City Council can approve the Ordinance as drafted, make changes to the draft
Ordinance or deny the Ordinance as drafted. Long Range and Historic Preservation Planner Tibbs and
Chief of Police Clint Blackhurst answered questions from Council regarding:
- The reasons the City would require permits for many other situations but not require permitting for
marijuana growth.
- An estimated number of personal grow operations in the City at this time.
- The rights of citizens being stepped on by limiting the grow areas to 50 sq. ft. when the overall goal is to keep the entire home from becoming a grow house.
- The right of the City government to determine what enclosed, locked space can be used as a grow Area, and possible revised language to address this concern.
- The current Building Code allowing commercial lights in residential homes.
- 50 sq. ft. being a sufficient amount of space for a person to have a reasonable home grow area.
- The numbers of apartments or homes that have had issues when dealing with marijuana
concentrate.
City Manager Esquibel summarized that Council would like clarification regarding: 1) permitting; 2)
50 sq. ft. being sufficient space for a home grow; 3) commercial lights being allowed for home grow
operations; and 4) the rooms in which the plants will be allowed to be grown.
Motion by Mayor Pro Tem Wallin to amend the Ordinance by removing Sec. 9-38-50(f), seconded by Councilmember Humbert. Motion passed by the following vote:
(Clerk's Note: 9-38-50(f) states: (f) It is unlawful to use any portion of the kitchen, bathroom, or occupied bedroom(s) for the indoor cultivation of marijuana.
Aye: 7 Mayor McLean, Mayor Pro Tem Wallin, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss, Councilmember Kreutzer, and Councilmember Martinez
No: 2 Councilmember Baca and Councilmember Bell
Motion by Mayor Pro Tem Wallin to amend the Ordinance to change 50 sq. ft. to 100 sq. ft. total on the property, seconded by Councilmember Martinez. Motion failed by the following vote:
Aye: 3 Mayor Pro Tem Wallin, Councilmember Kreutzer, and Councilmember Martinez
No: 6 Mayor McLean, Councilmember Baca, Councilmember Bell, Councilmember
Edwards, Councilmember Humbert, and Councilmember Kniss
Motion by Councilmember Martinez, seconded by Councilmember Baca, to approve the
Ordinance . Motion passed by the following vote:
Aye: 8 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Edwards, Councilmember Humbert, Councilmember Kniss, Councilmember
Kreutzer, and Councilmember Martinez
No: 1 - Councilmember Bell
7. ORDINANCES FOR FINAL CONSIDERATION
A. AN ORDINANCE OF THE CITY OF BRIGHTON CITY COUNCIL APPROVING THE
BROMLEY PARK PUD (PLANNED UNIT DEVELOPMENT), 16TH AMENDMENT
(MAJOR) FOR THE APPROXIMATELY 72.23 ACRE PROPERTY, LOCATED
WITHIN THE NORTH HALF OF SECTION 10, TOWNSHIP 1 SOUTH, RANGE 66
WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY OF BRIGHTON, COUNTY OF
ADAMS, STATE OF COLORADO
Mayor McLean read the title of the Ordinance into the record.
City Manager Esquibel explained that this is the final reading of the Ordinance and there have not been
any changes since first reading.
Mayor McLean asked if there were any comments from the audience on the final reading of the
Ordinance, there were none.
Motion by Councilmember Kreutzer, seconded by Councilmember Kniss, to approve Ordinance
2194. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
8. RESOLUTIONS
9. UTILITIES BUSINESS ITEMS
10. GENERAL BUSINESS
11. REPORTS
A. By the Mayor.
Mayor McLean attended the Metro Mayors Caucus, an E-470 meeting, the ribbon cutting at Papa
Johns, the Economic Development Corporation Board meeting, the ADCOG Dinner in Commerce City
and the Colorado Business Hall of Fame celebration where Bob and Joanna Sakata were inducted,
this is the first time ever a farmer has been inducted. Mayor McLean attended the Brighton State of the
Chamber and the Metro North Chamber Gala.
B. By Department Heads.
Parks and Recreation Director Gary Wardle presented City Council with copies of an article from the
Denver Post about farmland preservation in Brighton.
C. By the City Attorney.
D. By the City Manager.
12. REPORTS BY COUNCIL ON BOARDS & COMMISSIONS
Councilmember Bell attended the Highway 85 Coalition meeting and statistics show that traffic will
double on Highway 85 by the year 2020. The group is looking at other possible north, south arterial
roads to relieve some of this congestion.
Councilmember Humbert attended the ribbon cutting at Innovative Real Estate and Papa Johns. The
deadline for applications for Help for Homes candidates is March 26th.
Councilmember Baca attended the NATA meeting, the DRCOG meeting and the 60th Anniversary
Chamber breakfast.
Streets and Fleet Director Joe Smith reported that Brighton hosted the Highway 7 Coalition breakfast. There was a good turnout and there were good discussions regarding north, south connections and
connecting important areas from Boulder, Denver and Brighton.
Mayor Pro Tem Wallin attended the ADCOG dinner, the Lochbuie Sewer Board meeting, and the Fort
Lupton Chamber Gala, it was a great event. The Youth Commission attended the Cherry Creek
Diversity Conference.
Councilmember Edwards attended the ribbon cutting at Innovative Real Estate, the Coffee with the City
Manager, the ADCOG dinner, the Chamber luncheon, the Economic Development Corporation
meeting, a ride along with the Brighton Police Department and the North Metro Gala.
Councilmember Martinez took a tour of the library and encouraged everyone to do so if they get the
opportunity. Councilmember Martinez attended a CML seminar encouraging community participation in
development and jobs, and the North Metro Chamber Gala.
Councilmember Kreutzer was impressed with the Utilities Department staff members that came to his
home to replace his water meter. Councilmember Kreutzer attended the Coffee with the City Manager,
the ADCOG dinner and it is exciting to see what neighboring communities are doing. Commerce City
will host the Colorado Rapids All Star Game, and the United States and Mexico Olympic Teams will be
playing there also. The Sister Cities Dinner and Auction will take place this Saturday.
Councilmember Kniss reported that the new artwork will be put up this weekend at City Hall and
thanked Laurie Maier for her hard work. Since 2011 over 200 pieces of art have been sold in the City.
Councilmember Kniss attended the State of the Chamber breakfast, Friday night The Pennock Center
will be hosting its fundraiser at the Eagle View Adult Center and the School District announced that it
will be going to a split schedule for high school students next year.
13. EXECUTIVE SESSION
Motion by Mayor Pro Tem Wallin, seconded by Councilmember Baca, to go into Executive
Session at 9:28 p.m. for the purpose of determining positions relative to matters that may be subject to negotiations, developing strategy for negotiations, and/or instructing negotiators,
under C.R.S. Section 24-6-402(4)(e) regarding 575 Bush Street. Motion passed by the following vote:
Aye: 8 - Mayor McLean, Councilmember Baca, Councilmember Bell, Councilmember
Edwards, Councilmember Humbert, Councilmember Kniss, Councilmember
Kreutzer, and Councilmember Martinez
No: 1 - Mayor Pro Tem Wallin
14. ADJOURNMENT
Motion by Councilmember Martinez, seconded by Mayor Pro Tem Wallin, to adjourn at 9:29
p.m. Motion passed by the following vote:
Aye: 9 - Mayor McLean, Mayor Pro Tem Wallin, Councilmember Baca, Councilmember
Bell, Councilmember Edwards, Councilmember Humbert, Councilmember Kniss,
Councilmember Kreutzer, and Councilmember Martinez
CITY OF BRIGHTON, COLORADO
_______________________________
Richard N. McLean, Mayor
ATTEST:
_______________________________
Natalie Hoel, City Clerk
_______________________________
Approval Date
Exhibit A
Body
Department of Community Development
Reference: Marijuana Home Grow Regulations
To: Mayor Richard N. McLean and Members of City Council
Through: Manuel Esquibel, City Manager
Prepared By: Aja Tibbs, Long Range and Historic Preservation Planner
Date Prepared: January 21, 2015
PURPOSE
To adopt a new article 9-38 titled Marijuana Cultivation within Residential Structures, and to amend certain sections of 9-28-20 and 9-28-80, of the Brighton Municipal Code (BMC) in order to establish regulations for the personal and medical cultivation of marijuana within residential structures as established by Article XVIII, Section 14 and Article XVII, Section 16 both of the Colorado Constitution.
BACKGROUND
In March of 2011, the City Council adopted Ordinance No. 2086, prohibiting the licensing and operation within the city of Medical Marijuana Centers, Optional Premises Cultivation Operations and Medical Marijuana-Infused Products Manufacturers. Similarly, in response to Amendment 64 to the Colorado Constitution, in July of 2013, the City Council adopted Ordinance No. 2156, prohibiting the licensing and operation within the City of Retail Marijuana Stores, Marijuana Cultivation Facilities, Marijuana Product Manufacturing Facilities, and Marijuana Testing Facilities. According to CML, 53 municipalities are allowing/licensing of these retail facilities and 181 are prohibiting or have moratoria in place.
Notwithstanding these prohibitions, both medical marijuana and marijuana for personal use will still be legally present in the city of Brighton. Thus, at the time the ordinances were adopted by the Council, staff indicated that it would be necessary to amend certain provisions of the Municipal Code to address public health, safety and welfare issues associated with the legalization of personal marijuana and medical marijuana use and the home grows related to such use.
In order to determine what additional regulation, if any, is needed to address the personal use of marijuana, it is important to first understand what regulations exist within the adopted regulations.
Amendment 20: Permits patients with written permission from a physician for the use of marijuana to obtain a license with the state for the growth and use of marijuana. Such licensed person may legally possess up to two ounces of marijuana and up to six (6) marijuana plants (max. 3 mature). There is also a provision within this amendment that states the patient or care-giver may grow additional plants if the patient's medical condition warrants them to do so (There may be legislation in 2015 addressing doctors that are writing referrals above the six plants, requiring caregivers to register to ensure people are not allocating plant counts to more than one caregiver.) Amendment 20 also addresses the sales of medical marijuana through the operation of Medical Marijuana Centers. However, Ordinance No. 2086 prohibits these centers from establishing within the city limits of Brighton.
Amendment 64: States that persons aged 21 or older may purchase and possess marijuana accessories and up to one ounce of marijuana, plus up to six marijuana plants (max. 3 mature). The Amendment also states that the plants must be grown in an enclosed, locked space, and the cultivation may not be conducted openly or publicly and may not be made available for sale. It also allows personal consumption of marijuana, but prohibits it from being conducted openly or publicly in a manner that endangers others.
While the amendments do adopt the basic rights for personal use of marijuana, certain provisions of the Amendments are not clearly defined, which has caused confusion in the interpretation of the regulations. As with most regulation, vagueness has also provided opportunities for personal use within the law that may pose significant health and safety concerns to the greater public. As a result, other municipalities have adopted their own regulations to clarify these interpretations. Several months ago, staff worked to research and contact over twenty Colorado communities to understand how they are interpreting and additionally regulating personal marijuana use. A full summary of the research results has been attached to this staff report for your review and reference while considering this matter.
In response to the research results and meeting internally with city departments, staff has drafted a code amendment to address how marijuana might be appropriately cultivated within residential structures. Below is a general summary of the proposed regulations. (Please refer to the attached Ordinance to view the full text of the drafted code amendment.)
1. The cultivation, processing, production or possession of marijuana may only occur within primary or accessory structures used for residential purposes, and must be done within a fully enclosed and locked space.
2. Cultivation must be done by the owner of the property and structure or with the written consent of the owner and any other common interest owner. The written consent document must remain in the same location as the cultivation area and be provided upon request by any city authority. Lastly, obtaining the consent shall be the sole responsibility of the person residing on the property and operating the marijuana cultivation.
3. The cultivation area shall not exceed:
a. 50 SF for a single family detached structure;
b. 35 SF for a multifamily/attached structure;
c. 50 SF for a detached accessory structure;
d. A max. of 100 SF total for single family detached properties (includes residence and accessory structure) or a max. of 75 SF total for multifamily/attached properties (includes residential unit and accessory structure)
e. All cultivation areas must have a minimum of twenty-four inches (24") of clearance between the ceiling and the cultivated materials
4. The cultivation area cannot be perceptible from the exterior of the residence or accessory structure.
5. Lighting fixtures shall be limited to LED, CLF or fluorescent lighting typical of residential properties. Lights typical of industrial uses such as metal-halide or high-pressure sodium lighting are prohibited.
6. The kitchen, bathroom or any occupied bedroom cannot be used for the purposes of cultivation.
7. Chemicals used for the storing or processing of marijuana cannot be stored within habitable areas of the residence or within view of any neighboring property or right-of-way.
8. Cultivation cannot adversely affect the health or safety of the residents, users or occupants of adjacent properties by creating dust, glare, heat, noise, noxious gases, odor, smoke, traffic, vibration or other impacts.
9. Marijuana cannot be grown, processed or possessed in the common areas of a multi-family or attached residential development. 'Common Area' is defined as areas within a building or within a residential development that are available for common use by all owners, tenants or occupants (e.g., clubhouse, courtyard, parking area, storage area, etc.).
10. The operation of a home occupation permit which involves the presence of a minor in absence of their parent or guardian shall be prohibited from locating on any property with a marijuana cultivation area.
11. The process of extracting marijuana concentrate shall be prohibited for all residential properties.
12. Violations of these regulations is considered a criminal offense and punishable by fine or imprisonment pursuant to Article 1-24, BMC.
In addition to the proposed amendment, there are additional options which staff has not included in the draft ordinance, but which the Council may wish to consider. Below is a brief list of the major issues as well as staff's reasoning for excluding them from the draft ordinance:
1) All home grow operations shall require a permit by the city, in order to confirm that the regulations within the Code are being met, and in order to require additional improvements such as ventilation systems, mold and fire resistant building materials, electrical loading, etc.
a. With over 12,000 residential units within City limits, the requirement to permit every personal and medical marijuana use could create significant burden on staff resources, and additional staff would be requested in order to address these needs. Instead, staff found that by limiting the location and size of the cultivation area, the significant safety and health impacts could be reduced and negate the need for inspections and building improvements.
b. Additionally, at the study session held on October 28, 2014, one of the council members noted that staff should draft reasonable regulations that did not overly restrict or invade on the privacy of people's homes or require permits.
2) Increase or decrease the cultivation area permitted within the residential units.
a. A significant discussion was held with staff to determine the appropriate cultivation areas for residential units. Staff found that health and safety concerns typically correspond with the size of the cultivation area. Limiting the cultivation area to 50 SF helps to keep the moisture levels, light needs, and processing materials at a level that is believed to be safely appropriate for buildings intended for residential uses. For adults that need additional grow area, staff has proposed to also allow 50 SF of cultivation area in an accessory structure on the same property. This option helps to divide the cultivation impacts into two structures and reduce the health and safety impacts typical of larger grow areas. The area within multifamily and attached units was reduced in comparison to single family detached units, because these residences are typically smaller in size, have fewer rooms for cultivation areas, have fewer occupants, and are more likely to create a nuisance with adjacent property owners by sharing walls, ventilation systems and other utilities.
3) Permit certain, safe, methods of marijuana concentrate production.
a. With additional research, staff does not feel confident that certain purported "safer" methods of creating marijuana concentrate are appropriate within residential structures. Considering the severe danger these methods pose to the user and surrounding residents, staff felt it would be appropriate to ban the action from residential properties at this time. The Colorado Attorney General has issued an opinion that the production of marijuana concentrate "("hash oil") was not contemplated by Amendment 64 and is, therefore, not permissible. It appears that efforts will be made to address this issue in the 2015 Legislative Session. Staff will continue to monitor the State's progress on researching and regulating this issue, and notify Council if methods are proven and determined to be safe for residents in our community. Overall, the regulations before the Council have been drafted to ensure that the home cultivation of marijuana does not impede on the primary residential use, and does not create negative health and safety impacts to the owner, resident, surrounding residents, and community as a whole. At the same time, the regulations support the basic right established in the Colorado Constitution for the personal and medicinal use of marijuana without creating a system that is overly burdensome or invasive to the resident.
PUBLIC COMMENT
While not required by the BMC, staff submitted a public notice of the City Council meeting to consider the proposed Ordinance in order to continue to be a more transparent local government. Because this will not be a public hearing, whether the Council wants to receive public comment will be at the option of the Mayor and Council. The notice was published in the Brighton Blade on January 21, 2015. However, no public comment has been received as of this day, January 27, 2015.
STAFF RECOMMENDATION
Staff is recommending approval of the proposed code amendments with input/revisions from the City Council.
OPTIONS FOR COUNCIL CONSIDERATION
· Approve the Ordinance as drafted at first reading, or
· Approve the Ordinance with specific changes at first reading, or
· Deny the Ordinance as drafted.
ATTACHMENTS
· Ordinance (Draft)
· Surrounding Community Regulations
· Ordinance No. 2086
· Ordinance No. 2156