John Scarffe, Nederland. The Town of Nederland Board of Trustees took action on a change of municipal codes related to home occupation floor area allowances for businesses during the Board’s regular meeting on Tuesday, October 21, 2014, at 7 p.m. at the Nederland Community Center. The Board also discussed a recommendation to prohibit marijuana-based business uses in residentially zoned areas.

During the Public Comment section of the agenda, Nederland Resident and property owner Udo Sille addressed the Board regarding this controversy over the grow houses that Nederland is getting involved in.The Board is looking at setting up some rules about residential versus businesses, Sille said.

“You’re approaching this in a wrong way. You already have zoning that stipulates what can and cannot be done,” Sille said. “I own commercial property in town and pay $10,000 a year in taxes.”

Sille said: “You’re setting up practices that are wrong, and you’re opening the door to more and more exceptions. Right now there are a lot of illegal businesses in town and the Board does not want to address it in that way.”

Ken McFarin of Nederland said he appreciates the concerns Udo just mentioned and named businesses that have grown from a home office. In the pursuit of that goal, the Town would negatively impact a lot of other small businesses.

Why would you want to consider that? Take the marijuana issue head on and come up with policies and codes to manage it, he said.

After the public comment and the number of residents who attended the meeting to discuss the topic, Mayor Joe Gierlach asked the Board if they could move this up on the agenda and move it to an action item. “Should we move this through the Nederland Planning Process (NPP) or should we take this as an action item today?”

Trustee Randy Lee said he didn’t support moving it to action until the next meeting, when Trustee Kristopher Larsen, who was absent, could participate. Trustee Topher Donahue said the original intent of current zoning codes has not really been enforced yet.

“I think time is what is going to give us the information we need. It just came out in October. Give it a chance for current codes to work. I don’t want to make it an action item.”

Trustee Peter Fiori said: “I’m incensed by the whole thing. We have given direction to Town Hall for other ordinances. We should direct to our advisory boards what we want from them. I think this is backwards. I’d like to kill it. I’m always for the NPP.”

Trustee Kevin Mueller said he’d like to see the NPP process. The Town’s Comprehensive Plan gives good guidance to make the Town’s code good.

“Ultimately, this municipality has so much work to do, for us to be working on these types of ordinances. I understand code and building code and how to address those issues. We have such a c-minus record.”

The Board agreed to move the item to an action item and to take public comment. Town Administrator Alisha Reis said that when the Town adopted the retail regulations, a number of inconsistencies between medical and retail make them hard to enforce. She tried to rewrite that so growth will either be allowed or not allowed.

The primary complaints resulting from marijuana grow businesses are increased traffic, and odor is the primary complaint. “We managed that internally and now with law enforcement,” Reis said.

“We have been working with some folks who do not have licenses. We’re trying to encourage these folks to get licenses. At this time we gave one stand-alone applicant for retail, and licensing has been approved both by the state and locally.

The Planning Commission is putting forth the concern of grow occupation floor area. At a 50 percent square footage, that’s no longer incidental. That was the thinking behind it. There are pros and cons to that, but many of the uses are already not permitted.

Licensing commenced October 1, 2014, for all new retail marijuana stores, marijuana infused products (e.g. edibles), cultivators and testing facilities, according to background material. These are the licensees unaffiliated with medical marijuana licensees that had existed in Town already and who had first bite at the apple for licensing after regulations were adopted last fall.

The only MMJ licensee to convert to retail was Canary Song, a retail marijuana store approved by the Board of Trustees after a licensing board hearing on January 21, 2014. The Town is completing licensing procedures for one other applicant, a retail cultivation facility known as the Flower Collective, located on Big Springs Drive in a General Commercial zone.

No other applications have been filed, as of October 1.  Outreach information has been posted to the Town’s Web site and sent to the local newspaper in an effort to educate potential other licensees and the community about licensing requirements and expectations.

Town staff has received word from a few potential applicants for retail cultivation, infused products and retail store licenses. None of these are within the zoning districts requiring Special Review Use permits – nearly all are within the General Commercial (GC) zoning districts.

The information before the Board at this time is related to the Board’s request to the Planning Commission to consider any needed adjustments to the Municipal Code related to marijuana-based business conducted in residentially zoned areas, in follow to the August 2013 adoption of Ordinance 720 providing for retail marijuana licensing in Nederland, as well as a July 29, 2914, joint study session of the Board and Commission related to the subject.

The primary focus was home occupation and Special Review Use permit codes, as they related to marijuana cultivation home businesses. The Planning Commission, at its August 27, 2014, meeting, voted to forward a recommendation to change municipal codes related to home occupation floor area allowances.

The Commission also forwarded a recommendation to prohibit marijuana-based business uses in residentially zoned areas. The Commission did not have further recommendations for SRU criteria at this time, arguing that the current criteria provide sufficient flexibility and guidance for review.

The proposed ordinance would decrease the allowable floor area for home businesses from the current 50 percent to 35 percent. The ordinance was developed as a result of findings by the Planning Commission that the current allowance does not meet the Municipal Code intent of home occupations being accessory uses to the principal residential use (home), or as noted in the Code, “such use shall be clearly incidental and secondary to the use of the dwelling for dwelling purposes and shall not change the character thereof.”

Splitting a home 50/50 between a business use and a home use is not meeting that intent. The Commission had been discussing this floor area issue prior to the discussion of potential marijuana-based business as a home occupation; thus, the Commission’s recommendation was made more broadly to include all allowable home businesses under this section.

The Commission also voted to reiterate to the Board its objection to marijuana-based business in the residentially zoned areas of town. The Commission recommended amending the Zoning Use.

A marijuana cultivation facility is permitted in the residential zoning areas as a home occupation, under the special review use permit process.  Such amendment would also require changes to the establishment ordinances related to licensing of retail marijuana.

Trustee Kevin Mueller said the Town wants people to be able to make the best use of the property they have. Prior to this coming up, cultivation was happening in residential areas.

The question was how could we make that a legitimate business. Why shouldn’t they be allowed to do anything they want with their basement? These recommendations are three or four steps backwards.

Fiori said: “We as a board decided to ask for a list of what would accommodate an SRU. What we’ve gotten back is a rebellion and an ordinance. Where did that break down of communication take place?

Donahue said the Planning Commission feels strongly about not having a commercial use for residential homes. They are against the idea of our homes becoming industry cottages.

“We set up some parameters but we have not been able to enforce them. Maybe the Planning Commission could be brought around. Let this have more time go by and then we can go back to the Commission and appease members of the community who are concerned,” Donahue said.

Reis said very large operations have been put in place, and sometimes those are not reported. The codes do not necessarily recognize there is a difference between going into a business downtown and going into someone’s home.

If you have a home occupation, you have to post hours, and we can come in during those posted hours. That very thing has been a challenge and that is not addressed in the code.

“Instead we’re going to folks who have operations and getting them comfortable with it. We’re trying to move through the cases but we’re not having a kind of flash-bang enforcement.” Residents can have up to six plants and that’s okay.” Reis said.

The Board allowed more public comment, and resident Mark Rose said he has been a medical marijuana patient and care giver since 2004. Plant counts can be very deceptive.

He gave up care giving because the plant count was in the thousands, and he didn’t want to do that in a personal residence, but now he does grow it for himself. The situation can be addressed through existing laws and regulations, Rose said. It will not change if growing is banned. Growing for care givers is a constitutional right in this state.

“People are spending lots of money. Please do not trample on the will and intent of the voters. The people have spoken. Try enforcing them before you start changing them,” Rose said.

Jesse Seavers told the Board he had said this to the Planning Commission. The Town is missing a big opportunity from a sustainability perspective.

“We don’t have any local food, yet we have a large population of master growers. Try to incentivize our growers to at least be a brain trust as to how to successfully grow in the mountains. With some skillful policy creation we can subsidize a small food industry.”

Mayor Gierlach said the Board does need to go to the NPP and put it through a more rigorous review. Trustee Lee said he was in favor of sending it through the NPP and supports the Planning Commission recommendations on the user groups.

“We need to be careful to balance freedom and the right not to be burdened by our neighbor. You’re not entitled to have a liquor store in your neighborhood. You can produce beer or wine for your own use. The same should apply to marijuana,” Lee said.

Trustee Donahue Topher said: “I would like to see the code that exists be tried. Right now it’s a matter of our opinions and I don’t know that’s enough to change these codes. Let’s decide this in a year from now.”

Trustee Fiori said: “I don’t think this is any of our business. We have a perception issue in our Town and we have to work on that. We have a pre-existing condition that has been going on for 40 years.

“For us to tell people what they can do is not right. We’re on the wrong side of history. We’re talking about a zoning violation, not a felony.

“This is the fourth time this will go back through the NPP. Nobody is allowed to have a full house grow in our town. If they are, they should get popped. We’re talking about a zoning violation here.

“You should be able to do anything that is constitutionally protected in our homes. The idea of sustainability is all over our policies. We want to be able to produce something in our town. We will not survive as a town. Just try to contain things and use the laws we have.”

Trustee Mueller said: “We can’t allow them to destroy property. To me that’s the concern I’ve been trying to address. We have code in place and a code official. I’m fine with not talking about this again and if it comes up again we should have real evidence. No NPP.”

Trustee Charles Wood said he didn’t have anyone coming to him and saying let’s make marijuana illegal. We do have a legitimate concern about underground businesses that we don’t know are here.

The Town has lots of good reasons for having people licensed. It’s a disadvantage to legitimate businesses that pay taxes and have a license, Wood said.

Is that house safe? That’s what the code and zoning are all intended to address, Wood said. Both prior and current police chiefs have said residential is a lot different than business. They can go into a business but not a residence.

“You have to have probable cause. If you say it’s illegal to have an unlicensed commercial grow, the police could inspect. We don’t allow beauty shops in residences.

“I like the idea of waiting a year but it’s not going to solve the problem of licensing commercial grows. There’s a set of public safety issues that go with the Black Market. We should find a way to improve enforcement.”

Mayor Gierlach suggested the Board table the 35 percent proposal indefinitely and table the other half until May or June. Donahue came back to tabling it for a year to October of 2015.

The motion carried with Wood and Lee voting against it.

The next meeting of the Nederland Board of Trustees will be on Tuesday, November 4, at 7 p.m. in the Nederland Community Center.