John Scarffe, Nederland.   Nederland residents packed the Nederland Community Center to express their views on marijuana growing operations in the Town’s residential neighborhoods before the Nederland Board of Trustees during a regular meeting on Tuesday, January 5, 2016, at 7 p.m. The Board was considering an ordinance to change zoning and licensing laws related to retail marijuana cultivation, as they relate to place of operation.

The ordinance resulted from Planning Commission recommendations of 2013 and 2014, as well as requests made by members of the community before the Planning Commission in October 2015 and the Board of Trustees in December 2015, according to background information. The ordinance would prohibit retail marijuana cultivation to take place in residential zoning districts, specifically the High, Medium, and Low-Density Residential zones and the Mountain Residential zone.

Cultivation in mixed-use zones -- Neighborhood Commercial and Central Business District -- would remain as uses by Special Review, and cultivation in Forestry zones and business zones -- General Commercial and Industrial -- would remain uses by right. Cultivations would continue to be prohibited in Public zones.

The Board of Trustees adopted recreational and retail marijuana regulations via Ordinance 720 on August 20, 2013, according to background information. The licensing elements of these regulations were further clarified in Ordinance 721, adopted on October 1, 2013.

The Board charged the Planning Commission with creating criteria for Special Review Use permits related to these new regulations, including Home Occupation Business Licenses for marijuana-based businesses in residential zones (retail marijuana cultivation facilities and marijuana testing facilities). 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, according to background.

The Commission also forwarded a recommendation to prohibit marijuana-based business uses in zoned areas. The Board reviewed the Planning Commission’s recommendations at its Oct. 21, 2015 regular meeting, voting to table further consideration after seeing how the regulations operated in the first year.

In the interim, the Town received one application for a Special Review Use permit at 78 Barker Road for a retail marijuana cultivation business, according to background. That application was reviewed by the Planning Commission on October 28, 2015.

After a public hearing and consideration of the case, the Planning Commission voted to recommend to the Board of Trustees denial of the permit, according to background, citing incompatibility with surrounding residential uses and concerns related to the site’s ability to handle refuse water via the septic system.

The applicant withdrew her permit request from further consideration on November 18, without the case moving to Board review. Town staff has received no other applications for retail cultivation in residential zones.

As initially discussed in 2014, Town staff and code enforcement have continued to receive complaints related to marijuana growing in neighborhoods, mainly due to odor. Town staff has addressed these complaints with on-site inspections and enforcement warnings, with most turning out to be permitted adult cultivations or caregiver cultivations.

Town Administrator Alisha Reis told the Board that, with most of the cases, she knows the people involved, and they show her there is no evidence. Almost 100 percent of the complaints have been odor related, and those are covered by a nuisance ordinance, Reis said, and 70 percent are personal plant grows.

“We have worked with several operators to come into compliance with the Town’s nuisance codes related to odor,” Reis said. “Some cases have included unlicensed retail cultivations, with larger enforcement work required for mitigation.”

Mayor Pro-Tem Peter Fiori asked what would happen if someone smelled marijuana, or saw someone leaving the house with a paper bag and called the police. “What is the law going to say if one neighbor accuses another neighbor? Can you tell me the protocol?”

Police Chief Paul Carrill said a complaint can be made in several ways. “We refer that to zoning, and they go and talk to them,” he said.  Reis said Town staff addresses the violation, and if odor can be smelled, they knock on the door. “We do not violate civil liberties,” Reis said. “We can’t access their property unless they invite us or get a warrant. I have been handling most marijuana-related calls because it has zoning and licensing together.”

“Frankly, if most people know there is not an allowance for this they won’t set this up. At least we will not draw people looking for this kind of set up,” Reis said, explaining that the market has had a huge impact. “Folks have been able to sell out of their homes and move on.”

During public comment, nearly 20 residents addressed the Board in favor of the ordinance prohibiting residential pot grows. Some pointed to environmental concerns.

Allowing a large number of grows within residential areas will cause a large amount of runoff, which could damage Barker Reservoir. Water flows directly from a septic system into the lake, and that will cause the algae in the lake to increase greatly, depleting oxygen and greatly impacting the ecosystem.

Most houses in Nederland are on septic systems. Nutrients and pesticides get into ground water. Some residents support forcing commercial grows into commercial zones, where they have security and fire protection, as opposed to all through the neighborhoods.

A property owner for about a decade said he was concerned about allowing marijuana grows in Nederland because they are not a cottage industry. It’s a multi-million dollar business. “It’s not something I want to see in the house next to me,” he said.

Theresa Jordan said that grows should be located in zoned commercial districts and subject to licenses and fees. “It will exacerbate the shortage of rental properties,” she said.

Emphasizing that Nederland is the only place in Colorado that allows commercial grows in a residential area, Kristi Vendetti said: “We have a housing crisis. We lose a family every two to three weeks because they cannot find housing. We’re putting plants in houses instead of people.” Dallas Masters said those with commercial grows are not the kind of neighbors he’d like to have -- single males who want to grow marijuana in their homes. “That’s not the way to market our town,” he said.

Ken Winter pointed out that Colorado is looked upon as a model as to how to conduct marijuana legalization right. Regulations such as this increase the reputation of the town and state.

Nederland residents are part of a diverse group of people who value a small, close-knit community, another resident said. Home-based marijuana grows will turn our town into a place to grow marijuana.

A resident involved with the local schools expressed concern about the elementary school because enrollment has gone down. “I think we need to think about the kids. Do you want the kids playing next to a grow house?” Mark Rose told the Board he’s been here 40 years. The problem with our housing is we live in the most beautiful place in the United States.

“We’ve run out of places to build. I can document that starting in the 1950s,” Rose said. Pot has been grown in the town since the 1970s. Nine out of ten growers do a good job, but you’ve got that one idiot from out of state. It’s dangerous. Two residents expressed concern about the ordinance. Kathleen Chippi said she voted no against 64, because of the language. No one from government has a right to enter a person’s property without a warrant.

“Prohibition has failed,” Chippi said. “Everyone has been growing marijuana for the past 50 years in Nederland. I am concerned about anonymous complaints.”

Another resident pointed out that this ordinance would eliminate the possibility of working with staff to develop an SRU with a tiered system that makes it economically viable to grow pot.

Starting off Trustee comments, Fiori reminded the Board that he was chair of the committee that wrote the law, and they ended up with 29 pages of paper. “We try to get people to be safer. We are seriously concerned about Old Town, which will go up in fire one of these days,” Fiori said. “I do care about my town burning down.

“I don’t think we have a housing crisis because people use their bedroom any way they want to,” Fiori said. “We’re going to pass this. The point is taken.”

Nederland has a lot of grow houses, and now we can’t inspect them, Fiori said. “We’re just forcing people into the black market. I encourage everyone to think about what we’re going to do to keep our neighborhoods safe. No one is going to tear down their grow room tonight.”

Trustee Topher Donahue said that Nederland being the only town in Colorado to allow grows in residential areas was a problem. “We wouldn’t have voted on 64 if we knew we were voting for grow operations next door,” he said. Trustee Charles Wood said it would be the same kind of issue if commercial breweries were moving next door to a house where they’re trying to raise kids. Being the only town in Colorado that allows commercial grows is the wrong marketing message.

Trustee Randy Lee said any business allowed in a commercial area should be compatible with neighborhood use. Set back from schools was 100 feet, and that was grossly too small. It should be 300 to 500 feet. “I’m against it unless we make that change.”

Trustee Kevin Mueller thinks these cases should have an SRU review. “Our code is inadequate. The SRU is our only mechanism. I’m for the community getting together,” Mueller said. “What’s the difference between a care giver who fills up three bedrooms with plants and a commercial operation?” Mayor Joe Gierlach proposed passing the ordinance as written but has a concern that more commercial grow operations were looking at getting properties in Town, and they don’t pay sales tax. “It limits our ability to have retail space, and what we end up doing is making downtown look like a big commercial grow operation instead of a few acre lots outside of town. We should be aware of these unintended consequences.”

The motion passed with Trustees Lee and Mueller voting against it.