HomeMy WebLinkAboutPEC090030Planning and Environmental Commisson
ACTION FORM
VA OF VE
Department of Community Development
75 South Frontage Road, Vail, Colorado 81657
tel:970.479.2139 fax: 970.479.2452
web: www.vailgov.com
Project Name: MEDICAL MARIJUANA DISPENSARY PEC Number: PEC090030
Project Description:
Participants:
TITLE 12 CODE AMENDMENT(S): MEDICAL MARIJUANA/CANNABIS DISPENSARIES, LAND USE
OWNER VAIL COLORADO MUNICIPAL BLDG 09/22/2009
75 S FRONTAGE RD
VAIL
CO 81657
APPLICANT VAIL COLORADO MUNICIPAL BLDG 09/22/2009
75 S FRONTAGE RD
VAIL
CO 81657
Project Address: 75 S FRONTAGE RD W VAIL Location:
Legal Description: Lot: Block: Subdivision: R.O.W.
Parcel Number: 2101-064-0000-3
Comments: SEE CONDITIONS
BOARD/STAFF ACTION
Motion By: KJESBO Action: APPROVED
Second By: KURZ
Vote: 7-0-0 Date of Approval: 10/12/2009
Conditions:
Cond: 8
(PLAN): No changes to these plans may be made without the written consent of Town of
Vail staff and/or the appropriate review committee(s).
Cond: CON0011112
1. ADD MEDICAL MARIJUANA DISPENSARIES AS A CONDITIONAL USE IN THE GENERAL USE
DISTRICT.
Cond: CON0011113
2. In Subsection 12-16-7A-17A, change "50 ft" to "100 ft."
Cond: CON0011114
3. In Subsection 12-16-7A-17C, change "at medical marijuana dispensaries" to
"orr-site."
Cond: CON0011115
4. In Subsection 12-16-7A-17D, change "sale" to "distribution."
Cond: CON0011116
5. In Subsection 12-16-7A-17H, change "marijuana paraphernalia" to "drug
paraphernalia."
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Cond: CON0011117
6. In Subsection 12-16-7A-17J, change "main entrance" to "all entrances."
Planner: RACHEL FRIEDE PEC Fee Paid: $0.00
FA
General Information: An amendment of the zoning regulations or change in zone district boundaries may be initi-
ated by the Town Council, by the Planning and Environmental Commission, by petition of any resident or property owner
in the Town, or by the Administrator. Required criteria and findings for such petition are stated in Section 12-3-7C, Vail
Town Code. Relevant sections of the Vail Town Code can be found on the Town's website at.www.vailgov.com. The
proposed project may also require other permits or applications and/or review by the Design Review Board and/or Town
Council.
Fee: $1300
Description of the Request: ! 1 i le I CoAe- ~M~1~~ m eIL'~s ~r~Sf
Physical Address:/'~
Parcel Number: ~DI otl 7VO003 (Contact Eagle Co. Assessor ~at,9L70-328-8640 for parcel no.)
Property Owner: Glo / `ok+t (e ! ow ex 4fto f nom!
Mailing Address: -75 S• rOnhUgp~ Vc4ilj C~ ~1 ~57
Phone: 71 - Q 1 55
Owner's Signature: k' a~
Primary Contact/ Owner Representative: rA M2 6S G,ko~e
Mailing Address:
Phone:
E-Mail: Fax:
For Office Use Oni : CashCC: Visa / MC Last 4 CC # Auth # Check #
Fee Paid: U 0%iyey _1'0'_A QOf►G~,-f~o~ Received From: nn✓✓~~
Dl/ /O°1 PEC No.: _ ,Q Ce0q W'
Meeting Date:
Planner: Project No: J?fj. -Q 4L
Zoning: Land Use:
Location of the Proposal: Lot: Block: Subdivisic
D
SEP 2 2 2009
TOWN OF VAIL
Amendment to District Boundaries (Rezoning) or Zoning Ordinance
Application for Review by the
Planning and Environmental Commission
r
HAYES, PHILLIPS, HOFFMANN & CARBERRY, P.C.
1
m
g
1350 Seventeenth Street, Suite 450
-
-
Denver, Colorado 80202-1576
Telephone: (303) 825-6444
Facsimile: (303) 825-1269
Corey Y. Hoffinann
Fairplay Office
Kendra L. Carberry
675 Main Street
Jefferson H. Parker
P.O. Box 1046
Fairplay, CO 80440
Of Counsel
Telephone: (719) 836-9005
John E. Hayes
Facsimile: (719) 836-9010
Herbert C. Phillips
TOWN OF VAIL
MEMORANDUM
TO: J. MATTHEW MIRE, TOWN ATTORNEY
FROM: KENDRA L. CARBERRY, ESQ.`
CHARISSA A. ECKHOUT, ESQ.
DATE: SEPTEMBER ll., 2009
RE: MEDICAL MARIJUANA DISPENSARIES
Hilary M. Graham
Charissa A. Eckhout
Elizabeth C. Gross
Cristina E. DiMaria
This memorandum outlines the Town`s options for addressing medical marijuana
dispensaries ("MMDs") as a constitutional matter and under the Town's legislative authority.
I. Amendment 20 and Implementing Regulations
In 2000, Colorado voters passed Amendment 20 to the Colorado Constitution, legalizing
the use of medical marijuana. Colo. Const. art. XVIII, § 14. Amendment 20 created an
exception to the state's criminal laws for any patient or primary care-giver in lawful possession
of a registry identification card to engage or assist in the medical use of marijuana. Colo. Const.
art XVIII, § 14(2)(b). Amendment 20 also created an exception to the state's criminal laws, for
physicians to advise and authorize medical marijuana use for patients who have been diagnosed
with debilitating medical conditions. Colo. Const. art. XVIII, § 14(2)(c).
For purposes of Amendment 20, "medical use" means:
The acquisition, possession, production, use, or transportation of
marijuana or paraphernalia related to the administration of such
marijuana to address the symptoms or effects of a patient's
debilitating medical condition, which may be authorized only after
diagnosis of the patient's debilitating medical condition by a
physician or physicians, as provided in this Section.
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Colo. Const. art. XVIII, § 14(1)(b). So, persons diagnosed with a debilitating medical condition
may use medicinal marijuana. Additionally, "primary caregivers" may obtain a registry card to
possess marijuana to assist another person diagnosed with a debilitating medical condition.
Amendment 20 defines "primary caregiver" as a person, other than the patient and the
patient's physician who is eighteen years of age or older and has a significant responsibility for
managing the well-being of a patient who has a debilitating medical condition. Colo. Const. art.
XVIII, § 14(1)(f). This term is important because it is the loophole though which businesses are
establishing MMDs.
To date, the sale of medical marijuana is not regulated by the state. As a result, new
businesses are popping up under the pretense that the business is a "primary caregiver" for those
diagnosed with debilitating medical conditions. The operators of the business are allowed to
hold a medical marijuana registry card, which authorizes them to acquire, possess, and transport
marijuana for use by the person for whom they care. Under this interpretation, the dispensary is
a primary caregiver for many people (essentially, their "customers").
The Colorado Department of Public Health and Enviromnlent (the "CDPHE") is charged
with promulgating rules to implement Amendment 20. Earlier this year, the CDPHE proposed
an amendment to its regulations to redefine the term "substantial responsibility for managing the
well-being of a patient," as that term is used in the definition of "primary caregiver."
Specifically, the CDPHE proposed that the definition of "significant responsibility for managing
the well-being of a patient" be as follows: "Assisting a patient with daily activities, including but
not limited to transportation, housekeeping, rueal preparation, and shopping, and making any
necessary arrangement for access to medical care and/or services." 5 C.C.R. 1006-2, Proposed
Regulation 2(A)(iii). Additionally the proposed regulations limit each primary caregiver to only
five (5) patients. 5 C.C.R. 1006-2, Proposed Regulation 2(B)(ii).
The purpose of this amendment was to effectively eliminate MMDs from existing
because the proposed definition would require that a primary caregiver assist a patient with daily
activities. See 5 C.C.R. 1006-2, Proposed Regulation 2(A)(iii). Moreover, because the proposed
regulation limits the number of individuals for which a primary caregiver may be listed, MMDs
would be limited to only five customers each, thereby eliminating the potential profits. 5 C.C.R.
1006-2, Proposed Regulation 2(B)(ii).
On July 20, 2009, the Colorado Board of Health (the "Board") held a hearing on a
proposed rulemaking that would amend the definition of "primary caregiver." During a twelve
(12) hour hearing on the proposed amendments, the CDPHE heard testimony from both
proponents and opponents of the amendments, including CDPHE officials, law enforcement
officials, Amendment 20's drafters, and approximately three hundred fifty (350) concerned
members of the public. Ultimately, the Board rejected the amendments, citing the many
compelling stories shared during public comment.
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During testimony, the Board heard from numerous members of the CDPHE, including
Ned Calogne, the CDPHE's chief medical officer. Mr. Calogne testified that the five (5) person
cap was based on the number of patients a person can care for daily. Proponents of the
amendment further testified that Amendment 20 does not mention medical MMDs, nor were
marijuana dispensaries contemplated or approved by Colorado Voters.
Opponents of the amendments testified that Amendment 20 was not intended to limit the
number of patients for which a caregiver may provide services. Opponents further testified to
the significant sales tax revenue that MMDs generate for municipalities. However, the most
compelling testimony provided by the amendment's opponents were made by members of the
general public.
The public commented on the nature of the MMDs, and described them as professional,
regulated and safe. Moreover, the public expressed concerns that, if the dispensaries were
eliminated, they would be forced to conduct illegal street purchases to obtain their medically
necessary marijuana. Patients further commented on the difficulty of successfully growing
medical grade marijuana, and that dispensaries allowed for patients to obtain their marijuana
from a reputable source.
While the Board did not necessarily agree with the proponents' interpretation of
Amendment 20, they did struggle with the five-person limitation, as they felt this number was
somewhat arbitrary. Indeed, after their voting, the Board briefly discussed the sufficiency of a
higher number for limiting the number of patients a primary caregiver may service. Ultimately,
the Board opted to witIthold any last minute amendments to the Rule, and instead decided to
pose the question to a stakeholder group that would gather more information on the issue.
II. Responding to MMDs
Because MMDs are not addressed by state law, local govermnents have been left to
regulate dispensaries. If a MMD were to propose location within the Town, there are three (3)
approaches the Town may take: 1) it may prohibit MMDs entirely; 2) it may allow MMDs under
its current code with no additional regulation; or 3) it may regulate MMDs within its jurisdiction.
A. Prohibiting MMDs
Under the Town Code, "[i]t shall be unlawful for any person to maintain, operate,
conduct, or engage in any business activity on premises within the Town without having first
obtained a business license." Code § 4-1-3. Moreover, the Town Code provides that, "[a] sales
tax license shall be required for any person who is engaged in business in the town." Code § 4-
3-2(A). Accordingly, an MMD must obtain both a business license and a sales tax license prior
to operating within the Town. While MMDs are arguably a legal business under state law, such
businesses are clearly not legal under federal law.
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Pursuant to federal law, it is illegal to "manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841.
Marijuana is designated as a Schedule 1 controlled substance pursuant to federal law. 21 U.S.C.
§ 812(c). Until recently, states cooperated with the federal goverrunent in its drug enforcement
policies; however, numerous states have now legalized medical use of marijuana, thereby
significantly complicating the interrelation between state and federal laws.
In 2005, the United States Supreme Court decided a case in which users and growers of
medical marijuana sought a declaration that the federal Controlled Substance Act was
unconstitutional as applied to the California Compassionate Use Act. Gonzales v. Raich, 545
U.S. 1 (2005). In Gonzales, the Court was faced with the question of whether Congress' power
to regulate interstate markets for medicinal substances encompasses the portions of those
markets that are supplied with drugs produced and consumed locally. Id. at 9. More simply, the
Court had to decide whether federal drug laws applied to medical use of marijuana when such
use has been legalized at the state level. Id. Ultimately, the Court held that medical marijuana
use is subject to federal law, despite the fact that such use is legal at the state level:
First, the fact that marijuana is used for personal medical purpose
on the advice of a physician cannot itself serve as a distinguishing
factor. The CSA designates marijuana as contraband for any
purpose; in fact, by characterizing marijuana as a schedule I drug,
congress expressly found that the drug has no acceptable medical
uses [fjurthermore, the dispensing of new drugs, even when
doctors approve their use, must await federal approval.
Id. at 27-28. Accordingly, the Court held that federal authorities may still enforce the Controlled
Substances Act, despite the fact that medical marijuana use is legal in California. Id.
While nothing within the Town Code expressly prohibits the issuance of a business
license to an illegal business, we would argue that this is implicit in the Town's desire to regulate
businesses. Indeed, the purpose of business licensing is "to provide the Town with the necessary
information relating to businesses and professions operating within the Town." Code § 4-1-1.
Accordingly, the Town could deny issuance of a business license for an MMD based upon the
fact that the business is illegal under federal law.
Additionally, some municipalities are denying business licenses based upon their own
nuisance codes. These municipalities often have codes that state that the conducting or
maintaining of any business, occupation or activity prohibited by statute or ordinance is a
nuisance. Because it is illegal to manufacture, distribute; or dispense, or possess with intent to
manufacture, distribute, or dispense, marijuana under federal law, such a business would, in turn,
violate the nuisance code.
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The Town's Code addresses nuisances more broadly. Specifically, the Code defines
"nuisance" as:
[A]ny act or condition which endangers the public health or
environment or results in annoyance or discomfort to the public or
damage to any property or injury to any person.
Code § 5-1-1. The Code then goes on to list specific nuisance offenses. Code 5-1-3 through
5-1-10. While, the Code does not explicitly state that the operation of an illegal business is a
nuisance, such a use would arguably fall under the common law of nuisance. See 66 C.J.S.
Nuisances § 15 (recognizing that, "ordinarily, one who uses his property or conducts his business
in a lawful and proper manner does not create an actionable nuisance," thereby implying that an
unlawfully conducted business is a nuisance). Therefore, this could potentially be another basis
for denial.
The Town could also ban MMDs entirely through zoning. Unlike sexually oriented
businesses, there is no clear precedent that identifies a constitutional right to operate a MMD. To
the contrary, the operation of such facilities is the result of an interpretive loophole rather than
any express constitutional or statutory authority. It is the right to use medical marijuana that is
constitutionally protected. There is no similar protection for the sale of medical marijuana. As
discussed below, if the zoning were challenged, the Town need only demonstrate a rational basis
for its action.
B. Allowing MMDs with no additional regulation
If the Town desires to allows MMDs within its existing zoning Code, MMDs could be
considered drugstores. Pursuant to Code § 12-2-2, a "drugstore" is "an establishment engaged in
the retail sale of prescription drugs, nonprescription medicines, cosmetics and related supplies."
Code § 12-2-2. Medical marijuana is not a prescription drug, because it is not currently
regulated by the Federal Drug Administration, but it could be considered a "nonpresecription
medicine." By construing MMDs as drugstores, MMDs would be permitted or conditional uses
in the Commercial Core 1, Commercial Core 2, Commercial Core 3, Commercial Service Center
and Arterial Business zone districts.
C. Regulating MMDs
The Town may regulate MMDs through permitting and/or zoning regulations. Permit
requirements could include the following, in addition to standard identifying information:
1. Criminal background check to assure no felony criminal history and no previous
criminal history regarding controlled substances;
2. Right to possess the property where the MMD is located and authorization from
the owner of the property;
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3. Compliance with location restrictions, if any; and
4. Compliance with all other applicable laws, ordinances, and administrative
regulations.
As discussed in Section II(A) above, businesses operating within the Town must obtain
both a business license and a sales tax license before operating. Thus, the Town currently has a
mechanism in place under which it may obtain information regarding MMDs. Under the current
Code, MMDs would likely be considered "general service" businesses for purposes of business
license fees, as MMDs do not easily fall within the other license categories. See Code § 4-1-
4(B)(9). The Finance Director is authorized to investigate and determine the eligibility of each
applicant for an annual business license. Code § 4-1-7(D). Therefore, the Finance Director
could investigate whether an applicant meets certain established qualifications for MMDs.
Alternatively, the Town could adopt a separate licensing scheme for MMDs similar to the
sexually oriented business licensing regulations in Chapter 12 of Title 4 of the Code.
The Town could also adopt a zoning ordinance dictating where MMDs may be located
within the Town. Specifically, the Town could treat MMDs similar to SOBS and limit their
location to a certain zone district within the Town. The Town could incorporate distance
limitations to ensure that MMDs are not located within a certain distance of schools, parks and
residential uses. Additional regulations that may be considered include restrictions on signage,
hours of operation, warning signs and the imposition of mandatory security precautions.
The validity of distance limitations has long been recognized in the context of adult
theatres. Young v. American Mini Theatres, 427 U.S. 50, 71 (1976). In upholding distance
regulations, the Supreme Court has held that held that:
It is not our function to apprise the wisdom of [the City of
Detroit's] decision to require adult theatres to be separated rather
than concentrated in the same areas. In either event, the city's
interest in attempting to preserve the quality of urban life is one
that must be accorded high respect. Moreover, the city must be
allowed a reasonable opportunity to experiment with solutions to
admittedly serious problems.
Id. While the Young case involved a First Amendment challenge, MMDs do not involve any free
speech rights. Instead, the City would more likely face an equal protection challenge based on
the fact that it would be limiting such dispensaries to a specific zone district and subjecting such
uses to distance limitations.
The Equal Protection Clause of the Fourteenth Amendment prohibits any state or local
government from denying any person within its jurisdiction the equal protection of the laws.
U.S. Const. Amend. XIV, § 1. Strict scrutiny review is applied where the government action
discriminates against members of a traditionally suspect class, such as race, or if it involves a
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fiindamental constitutional right. People v. Blankenship, 119 P.3d 552, 554 (Colo. App.
2005)(citing Evans v. Romer, 854 P.2d 1270 (Colo. 1993)). However, where there is not a
suspect class or the implication of a fundamental right, the court applies a lesser "rational basis"
scrutiny to determine the constitutionality of the government action. Id. at 555.
MMDs are not a suspect class, nor does the operation of such facilities implicate a
fundamental right. Accordingly, if MMDs are treated differently than other similarly situated
businesses, the Town must have a rational basis for such differential treatment. Id. The United
States Court of Appeals for the Tenth Circuit has held that "an equal protection claim will fail if
there is any reasonably conceivable state of facts that could provide a rational basis for the
classification." Teigen v. Renfroih, 511 P.3d 1072, 1083 (10"' Cir. 2007). Similar to the Court's
finding in Young, the Town could easily argue that it has a strong interest in preserving the
quality of life within the Town. The Town could also argue that the location of MMDs close to
schools, parks and residential neighborhoods is simply not consistent with that interest.
111. Conclusion
The Town has several options to address MMDs. First, the Town may deny a sales tax or
business license application based upon federal illegality, or ban MMDs altogether through
zoning. Second, the Town may allow as drugstores under the current Code, without finrther
regulation. Finally, the Town may take an active approach by licensing MMDs and/or adopting
a zoning ordinance limiting MMDs to a specific zone district.
We would note that several municipalities are currently grappling with this issue. While
some municipalities such as Loveland and Longmont have opted to recognize medical marijuana
facilities under their existing codes, other municipalities such as Northglenn, Commerce City and
Breckenridge intend to adopt ordinances to regulate such businesses. Others still have chosen to
ban them entirely, including Greenwood Village and Aurora. As we continue to see how local
municipalities are handling these issues, we will keep you apprised.
As always, if you have any questions or concerns, please do not hesitate to contact us.
9/11/2009
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MEMORANDUM -ho L00f'~,
MMDs ~o
TO: Planning and Environmental Commission 'SON siv,
I2- Ib-:-rt-110 -
FROM: Community Development Department ~`d,•s (,n ~iithi/v,
DATE: October 12, 2009 a ~o„pt~,.vwl;••" "d pa.-.~.6w ~.~v►+~"
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SUBJECT: A request for a final recommendation to the Vail Town Council on prescribed
regulation amendments, pursuant to Section 12-3-7, Amendment, Vail Town Code
for amendments to Title 12, Zoning Regulations, Vail Town Code, to allow for
medical marijuana dispensaries as a land use in specific zone districts, and setting
forth details in regard thereto. (PEC090030)
Applicant: Town of Vail
Planner: Rachel Friede
1. SUMMARY
The applicant, the Town of Vail, is requesting a final recommendation to the Vail Town
Council for prescribed regulations amendments (Ordinance No. 22, Series of 2009)
pursuant to Section 12-3-7, Amendment, Vail Town Code, for amendments to Title 12,
Zoning Regulations, Vail Town Code, to allow for medical marijuana dispensaries (MMD) as
a land use in specific zone districts, and setting forth details in regard thereto.
Based upon Staff's review of the criteria outlined in Section V of this memorandum and the
evidence and testimony presented, the Community Development Department recommends
the Commission forward a recommendation of approval, with the findings noted in
Section VI of this memorandum.
II. BACKGROUND
In November, 2000, Coloradoans passed Amendment 20 to the Colorado Constitution,
legalizing the use of medical marijuana. Amendment 20 created an exception to the state's
criminal laws for any patient or primary care-giver in lawful possession of a registry
identification card to engage or assist in the medical use of marijuana. Amendment 20 also
created an exception to the state's criminal laws for physicians to advise and authorize
medical marijuana use for patients who have been diagnosed with debilitating medical
conditions.
While possession and use of medical marijuana is regulated by the State, the sale of
medical marijuana is not regulated by the State. As a result, new businesses in the form of
medical marijuana dispensaries (MMDs) are appearing under the interpretation that the
business is a primary caregiver for those diagnosed with debilitating medical conditions.
The State has deferred to local jurisdictions to regulate MMDs, typically through business
licensing, nuisance and zoning regulations.
Unlike sexually oriented businesses, which operate under the first amendment right to
freedom of speech within the U.S. Constitution, there is no constitutional right to operate a
medical marijuana dispensary. To the contrary, the operation of such facilities is the result
of an interpretive loophole within the Colorado Constitution, rather than any express U.S.
1
constitutional or statutory authority. It is the right to use medical marijuana that is protected
under the Colorado Constitution.
III. DESCRIPTION OF REQUEST
Title 12, Zoning Regulations, Vail Town Code, does not specifically address MMDs, which
are a hybrid of retail, pharmacy and medical office. Because the land use is not listed
within any zone district in the Town of Vail, it is thereby not permitted. However, pursuant
to Section 12-3-4, Determination of Similar Use, Vail Town Code, an applicant could
request that the Vail Town Council make a determination that MMDs are a similar use to a
land use listed within the regulations. Because of the recent increase in MMDs in the
region, the Town of Vail has identified this as an issue that needs to be addressed. There
are three courses of action that the Town of Vail could take to address MMDs:
1. No changes to the Vail Town Code, which would effectively ban medical marijuana
dispensaries within the Town; or
2. Amend the Vail Town Code to allow medical marijuana dispensaries anywhere within
the Town, or
3. Amend the Vail Town Code to define, permit and regulate medical marijuana
dispensaries within appropriate zone districts within the Town of Vail.
The purpose of the proposed Ordinance No. 22, Series of 2009 is to take the third listed
course of action and proactively address MMDs through amendments to Title 12, Zoning
Regulations, Vail Town Code. There have been numerous inquiries to the Community
Development Department regarding MMDs by parties interested in opening these
businesses in Vail. New businesses contribute sales tax and provide additional economic
benefits to the community. MMDs could be a compatible use, and Staff examined all zone
district characteristics to determine which zone districts would be appropriate for this use.
Because of the resort community nature of the Town of Vail, certain zone districts were
deemed inappropriate for this use. Staff determined that the most appropriate zone districts
for MMDs are the Commercial Core III, Arterial Business and Commercial Service Center
Districts. The purpose statements and underlying land use of these districts lends support
for the additional of MMDs as a conditional use, as is further discussed in Section V of this
memorandum.
The proposed text amendments are included in the draft Ordinance No. 22, Series of 2009,
which is found in Attachment A. The regulations provide a definition of medical marijuana
dispensaries and allow MMDs as a conditional use in Commercial Core III (CC3),
Commercial Service Center (CSC), and Arterial Business (ABD) Districts. Use specific
criteria are also established for MMDs, including the regulation of distance from schools,
distance from each other, signage, security, and business practices. Zone District Maps
are included in Attachment C for reference.
IV. APPLICABLE DOCUMENTS
TITLE 12, ZONING REGULATIONS, VAIL TOWN CODE (IN PART):
12-1-2: PURPOSE
A. General: These regulations are enacted for the purpose of promoting the health, safety,
morals, and general welfare of the Town, and to promote the coordinated and
harmonious development of the Town in a manner that will conserve and enhance its
natural environment and its established character as a resort and residential
community of high quality.
2
B. Specific. These regulations are intended to achieve the following more specific
purposes.
1. To provide for adequate light, air, sanitation, drainage, and public facilities.
2. To secure safety from fire, panic, flood, avalanche, accumulation of snow, and other
dangerous conditions.
3. To promote safe and efficient pedestrian and vehicular traffic circulation and to
lessen congestion in the streets.
4. To promote adequate and appropriately located off street parking and loading
facilities.
5. To conserve and maintain established community qualities and economic values.
6. To encourage a harmonious, convenient, workable relationship among land uses,
consistent with municipal development objectives.
7. To prevent excessive population densities and overcrowding of the land with
structures.
8. To safeguard and enhance the appearance of the town.
9. To conserve and protect wildlife, streams, woods, hillsides, and other desirable
natural features.
10. To assure adequate open space, recreation opportunities, and other amenities and
facilities conducive to desired living quarters.
11. To otherwise provide for the growth of an orderly and viable community.
ARTICLE 12-7E. COMMERCIAL SERVICE CENTER (CSC) DISTRICT
12-7E-1: PURPOSE: The commercial service center district is intended to provide sites for
general shopping and commercial facilities serving the town, together with limited multiple-
family dwelling and lodge uses as may be appropriate without interfering with the basic
commercial functions of the zone district. The commercial service center district is intended
to ensure adequate light, air, open space, and other amenities appropriate to permitted
types of buildings and uses, and to maintain a convenient shopping center environment for
permitted commercial uses.
ARTICLE 12-7F: ARTERIAL BUSINESS (ABD) DISTRICT
12-7F-1: PURPOSE: The arterial business district is intended to provide sites for office
space, public utilities, service stations, limited light industry having no adverse
environmental impacts that provides significant on site tourist amenities and limited
shopping and commercial facilities serving the town and Upper Eagle Valley residents and
guests. Multiple-family dwellings for use as employee housing will be appropriate under
specific circumstances. The arterial business district is intended to ensure adequate light,
air, open space, and other amenities appropriate to permitted and conditional types of
buildings and uses, and to maintain a convenient (limited) shopping, business, service, and
residential environment.
CHAPTER 12-16: CONDITIONAL USE PERMITS
12-16-6: CRITERIA; FINDINGS:
A. Factors Enumerated: Before acting on a conditional use permit application, the planning
and environmental commission shall consider the following factors with respect to the
proposed use:
1. Relationship and impact of the use on development objectives of the town.
2. Effect of the use on light and air, distribution of population, transportation facilities,
utilities, schools, parks and recreation facilities, and other public facilities and public
facilities needs.
3. Effect upon traffic, with particular reference to congestion, automotive and
pedestrian safety and convenience, traffic flow and control, access, maneuverability,
and removal of snow from the streets and parking areas.
3
4. Effect upon the character of the area in which the proposed use is to be located,
including the scale and bulk of the proposed use in relation to surrounding uses.
5. Such other factors and criteria as the commission deems applicable to the proposed
use.
6. The environmental impact report concerning the proposed use, if an environmental
impact report is required by chapter 12 of this title.
B. Necessary Findings: The planning and environmental commission shall make the
following findings before granting a conditional use permit.
1. That the proposed location of the use is in accordance with the purposes of this title
and the purposes of the zone district in which the site is located.
2. That the proposed location of the use and the conditions under which it would be
operated or maintained will not be detrimental to the public health, safety, or
welfare, or materially injurious to properties or improvements in the vicinity.
3. That the proposed use will comply with each of the applicable provisions of this title
VAIL LAND USE PLAN (IN PART)
Community Commercial: This area includes activities aimed at accommodating the
overnight and short-term visitor to the area. Primary uses include hotels, lodges, service
stations, and parking structures (with densities up to 25 dwelling units or 50 accommodation
units per buildable acre). These areas are oriented toward vehicular access from 1-70, with
other support commercial and business services included. Also allowed in this category,
would be institutional uses and various municipal uses.
Community Office: This area is to include primarily office uses of all types. Some limited
commercial uses, such as retail businesses; including general merchandise, apparel and
accessories and auto service facilities would also be permitted.
V. REVIEW CRITERIA
The extent to which the text amendment furthers the general and specific
purposes of the Zoning Regulations; and
The proposed text amendments provide a medical land use within the Town of Vail,
thus furthering the general purpose of the Zoning Regulations of "promoting the health,
safety, morals, and general welfare of the Town." By addressing the allowable zone
districts for this use, the text amendments also further the general purpose "to promote
the coordinated and harmonious development of the Town." The specific purpose of
securing safety from dangerous conditions is addressed by the use specific criteria that
requires security on site. The specific purpose to "conserve and maintain established
community qualities and economic values" is met by the use specific criteria that
safeguards the community from any undesirable qualities and follows economic values
of expanding types of businesses and land uses. The use specific criteria regulating
signage and advertisements aims to "safeguard and enhance the appearance of the
Town" another specific purpose. The introduction of the use itself provides new
business opportunity and new services for the community, which furthers the specific
purposes of assuring adequate amenities and "to otherwise provide for the growth of an
orderly and viable community. "
2. The extent to which the text amendment would better implement and better
achieve the applicable elements of the adopted goals, objectives, and policies
outlined in the Vail Comprehensive Plan and is compatible with the development
objectives of the Town; and
4
By addressing MMDs through regulations, the text amendments provide controlled
growth of land uses and ensure that this land use is in appropriate locations. This better
achieves the goal of the Land Use Plan stating, "Vail should continue to grow in a
controlled environment, maintaining a balance between residential, commercial and
recreational uses to serve both the visitor and the permanent resident." Since the
proposed regulations require that MMDs be located in specific commercial and business
districts, the amendments help to achieve another goal in the Land Use Plan, which is
that "commercial growth should be concentrated in existing commercial areas to
accommodate both local and visitor needs. "
3. The extent to which the text amendment demonstrates how conditions have
substantially changed since the adoption of the subject regulation and how the
existing regulation is no longer appropriate or is inapplicable; and
The adoption of Amendment 20 to the State of Colorado Constitution in 2000 set the
stage for allowing MMDs through legal loopholes. Recently, at least five MMDs have
opened in Eagle County. At least four different entities have expressed interest in
opening MMDs in Vail. The proposed text amendments are a direct result of these
changes to conditions, and reflect the Town's efforts to be proactive in this changing
environment.
4. The extent to which the text amendment provides a harmonious, convenient,
workable relationship among land use regulations consistent with municipal
development objectives.
Staff believes the text amendments provide a harmonious, convenient and workable
relationship about land use regulations because the districts selected to include MMDs
are appropriate and compatible with this use. While the Commercial Core 3 (CC3)
District does not have a purpose statement, the District as a whole is the sole location of
the Community Commercial designation in the Vail Land Use Plan. The Community
Commercial designation includes commercial serving the local community. The CC3
District and Community Commercial designation encompass the properties in West Vail
from the Brandess Building along the Frontage Road to 7-11 plus the Chamonix
property. Allowed land uses in this district include a wide variety of commercial
activities, such as offices, retail, supermarket, restaurant and banks. MMDs as a land
use are appropriate for this zone district and the underlying land use designation.
The purpose statement of the Arterial Business District (ABD) includes references to
providing for offices that serve the local and tourist community. The underlying land use
designation of the entire ABD is Community Office. This designation includes both
properties zoned ABD as well as the Glen Lyon Office Building across the street.
Because MMDs are a hybrid of existing uses including office, it would be an appropriate
land use for this district and land use designation.
The Commercial Service Center District consists of three properties, including Solaris,
US Bank Building, and the Gateway Building. All three properties are also Special
Development Districts that rely on underlying zoning for allowable land uses. All three
properties include office space, and the US Bank Building includes a bank and medical
offices. The purpose of the Commercial Service Center District is to provide for
commercial with limited residential uses. Medical marijuana dispensaries would be
appropriate in the Commercial Service Center District because of the concentration on
commercial and not residential uses.
The use specific criteria that requires MMDs to be located a minimum of 50 feet from
schools ensures that the MMDs will not conflict with incompatible land uses within the
same zone district. Required distances between two MMDs provides a safeguard that
this use will not overpower other uses, thus maintaining a workable relationship among
all land uses. Distances between MMDs and schools will be measured in a straight line,
without regard to intervening structures, from the closest exterior structural wall of each
business. Attachment C includes a map that depicts schools and distances to the zone
districts in consideration for MMDs.
5. Such other factors and criteria the Commission and/or Council deem applicable
to the proposed text amendment.
VI. STAFF RECOMMENDATION
The Community Development Department recommends the Planning and Environmental
Commission forwards a recommendation of approval to the Vail Town Council for
prescribed regulations amendments, pursuant to Section 12-3-7, Amendment, Vail Town
Code for amendments to Title 12, Zoning Regulations, Vail Town Code, to allow for medical
marijuana dispensaries as a land use in specific zone districts, and setting forth details in
regard thereto.
Should the Planning and Environmental Commission choose to forward a
recommendation of approval of this request, the Community Development Department
recommends the Commission pass the following motion:
"Based upon the review of the criteria outlined in Section V of Staff's October 12,
2009 memorandum and the evidence and testimony presented, the Planning and
Environmental Commission forwards a recommendation of approval to the Vail
Town Council, pursuant to Section 12-3-7, Amendment, Vail Town Code for
amendments to Title 12, Zoning Regulations, Vail Town Code, to allow for medical
marijuana dispensaries as a land use in specific zone districts, and setting forth
details in regard thereto, with the following findings:
1. That the amendment is consistent with the applicable elements of the adopted
goals, objectives and policies outlined in the Vail Comprehensive Plan and is
compatible with the development objectives of the Town; and
2. That the amendment furthers the general and specific purposes of the Zoning
Regulations outlined in Section 12-1-2, Purpose, Vail Town Code; and
3. That the amendment promotes the health, safety, morals, and general welfare of
the Town and promotes the coordinated and harmonious development of the
Town in a manner that conserves and enhances its natural environment and its
established character as a resort and residential community of the highest
quality. "
VII. ATTACHMENTS
A. Ordinance No. 22, Series of 2009
B. Amendment 20: State of Colorado Regulations on Medical Marijuana
C. Relevant Maps
D. Robbins, Rohn. "Vail law: Colorado's medical marijuana laws: Use of medical
marijuana in Vail and Colorado is narrowly defined." Vail Daily, 9/29/09
6
ATTACHMENT A
ORDINANCE NO. 22
SERIES OF 2009
AN ORDINANCE AMENDING TITLE 12, ZONING REGULATIONS, VAIL TOWN CODE, TO
ALLOW MEDICAL MARIJUANA DISPENSARIES AS A CONDITIONAL USE IN THE
COMMERCIAL CORE III, ARTERIAL BUSINESS AND COMMERCIAL SERVICE CENTER
DISTRICTS, AND SETTING FORTH DETAILS IN REGARD THERETO.
WHEREAS, the voters of the State of Colorado affirmed the medical use of marijuana by
approving Amendment 20 in November of 2000; and,
WHEREAS, the intent of Amendment 20 was to enable persons who are in medical need of
marijuana to be able to obtain and use it without fear of criminal"prosecution; and,
WHEREAS, the State of Colorado has not adopted regulations for medical marijuana
dispensaries, instead deferring to local jurisdictions to adopt regulations; and,
WHEREAS, the existing Town of Vail Zoning Regulations do not specifically address
medical marijuana dispensaries, which are a hybrid of retail, medical office and pharmacy that
caters to medical marijuana patients that are registered with the State of Colorado; and,
WHEREAS, the Town of Vail needs to address regulation of medical marijuana
dispensaries in order to ensure compliance with the Town's comprehensive plans, ensure harmony
among uses, and to protect the public health, safety and welfare; and,
WHEREAS, the Vail Town Council finds that the prescribed regulations amendments are
consistent with the applicable elements of the adopted goals, objectives and policies outlined in the
Vail Comprehensive Plan and is compatible with the development objectives of the Town; and
WHEREAS, the Vail Town Council finds that the prescribed regulations amendments
further the general and specific purposes of the Zoning Regulations outlined in Section 12-1-2,
Purpose, Vail Town Code; and
WHEREAS, the Vail Town Council finds that the prescribed regulations amendments
promote the health, safety, morals, and general welfare of the Town and promote the coordinated
and harmonious development of the Town in a manner that conserves and enhances its natural
environment and its established character as a resort and residential community of the highest
quality.
Ordinance No. 22, Series of 2009 1
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO, THAT:
Section 1. Purpose: The purpose of this ordinance is to establish regulations for medical
marijuana dispensaries, and allow them as a conditional use in the appropriate commercial zone
districts.
Section 2. Section 12-2-2, Vail Town Code is hereby
Section 12-2-2: Definitions of Words and T
Medical Marijuana Dispensary:
transmits, gives, dispenses or c
accordance with the laws of the
Section 3. Section 12-7D-2, Vail Town
Section 12-7D-2: CONDITIONAL USES:
The following conditional uses shall be perm
district, subject to issuance of a conditional u
provisions of chapter 16 of this title:
Any use permitted by section 12-7D-1 of this
entirely within a building.
Bed and breakfasts, as further regulated by
as
sells, distributes,
fical marijuana, in
d in the commercial core 3
permit in accord with the
is not conducted
12-14-18 of this title.
of uwpuus.
Child daycare center.
Commercial laundry and cleaning services, bulk plant.
Outside car wash.
Pet shops.
Public buildings, grounds, and facilities.
Public park and recreation facilities.
Public utility and public service uses.
Radio and television signal relay transmission facilities.
Theaters, meeting rooms, and convention facilities.
Transportation businesses.
Section 4. Section 12-7E-4, Vail Town Code is hereby amended as follows:
Section 12-7E-4: CONDITIONAL USES:
The following conditional uses shall be permitted in the CSC district, subject to
issuance of a conditional use permit in accordance with the provisions
of chapter 16 of this title:
Any use permitted by section 12-7E-3 of this article, which is not conducted
entirely within a building.
Bed and breakfasts, as further regulated by section 12-14-18 of this title.
Ordinance No. 22, Series of 2009 2
Bowling alley.
Brewpubs.
Child daycare centers.
Commercial laundry and cleaning services.
Communications antennas and appurtenant equipment.
Dog kennels.
Major arcades.
Medical Marijuana Dispensaries.
Multiple-family residential dwellings and lodges.
Outdoor operation of the accessory uses as set forth in
article.
Private clubs.
Private parking structures.
Private unstructured parking.
Public buildings, grounds and facilities.
Public park and recreation facilities. Public utility and public service uses.
Ski lifts and tows.
Theaters, meeting rooms, and convention facilities.
Section 5. Section 12-7F-4, Vail Town Code is
Section 12-7F-4: CONDITIONAL USES:
A. Enumerated: The following conditional use
business district, subject to the issuance of a
accordance with the provisions of chapter 16
Any use permitted by section 12-7F-3 of this
entirely within a building.
section 12-14-18 of this title.
Bed and breakfasts, as further provided by s
Brewpubs.
Child daycare centers.
Communications antennas and appurtenant equipment.
Private unstructured parking.
Public buildings, grounds and facilities.
Public park and recreation facilities.
Public utility and public service uses, including screened outside storage.
Service yards.
Transportation businesses.
Section 6. Section 12-16-7, Vail Town Code is hereby amended as follows:
Section 12-16-7: USE SPECIFIC CRITERIA AND STANDARDS.
The following criteria and standards shall be applicable to the uses listed below
in consideration of a conditional use permit. These criteria and standards shall
be in addition to the criteria and findings required by section 12-16-6 of this
chapter.
A. Uses And Criteria:
17. Medical Marijuana Dispensaries:
A. Medical Marijuana Dispensaries shall be located a minimum of
fifty (50) feet from any school or educational facility serving
persons under eighteen (18) years of age or any other medical
marijuana dispensary. The distance shall be measured in a
section 12-7E-5 of this
nended as follows:
s shall be permitted in the arterial
conditional use permit in
of this title:
article, which is not conducted
Ordinance No. 22, Series of 2009
straight line, without regard to intervening structures, from the
closest exterior structural wall of each business.
B. Medical marijuana dispensaries shall conduct all business
activities indoors. Outdoor display of goods is prohibited.
C. Consumption of medical marijuana in an~r form is prohibiteda+
OY1 -5►
D. Growing and/or the-eaft4f live marijuana plants is prohibited
at medical marijuana dispensan ok
E. Processing of medical marijuana into any derivative product,
including but not limited to cooking, baking and purification, is
prohibited on site.
F. Medical marijuana or associated products shall not be visible
from outside of the business.
G. Business identification signs shall be limited to one (1) sign
with a maximum area of up to six (6) square feet.
H. Any signage that is visible to the public from roadways,
pedestrian walkways or from other public areas sh all not,
contain graphics of marijuana or~paraphernalia.
1. Medical Marijuana Dispensaries shall not cover any portion of
windows of the business, except with window signs, as further
regulated by Title 11, Sign Regulations.
J. Medical marijuana dispensaries shall install security
surveillance cameras to monitor the main entrance and the
exterior of the premises to discourage and to facilitate the
reporting of criminal acts as well as nuisance activities.
Security video shall be preserved for at least 72 hours.
K. Medical marijuana dispensaries shall install professionally
monitored alarm systems, which shall be maintained in good
Section 7. If ar
is for any reason held to
portions of this ordinance
ordinance. and each part
the fact that any one or
declared invalid.
Section 8. ThE
, clause or phrase of this ordinance
ision shall not effect the validity of the remaining
Town Council hereby declares it would have passed this
, sentence, clause or phrase thereof, regardless of
subsections, sentences, clauses or phrases be
Council hereby finds, determines and declares that this ordinance
is necessary and proper for the health, safety and welfare of the Town of Vail and the inhabitants
thereof.
Section 9. The amendment of any provision of the Town Code as provided in this
ordinance shall not affect any right which has accrued, any duty imposed, any violation that
occurred prior to the effective date hereof, any prosecution commenced, nor any other action or
proceeding as commenced under or by virtue of the provision amended. The amendment of any
Ordinance No. 22, Series of 2009 4
provision hereby shall not revive any provision or any ordinance previously repealed or superseded
unless expressly stated herein.
Section 10. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent
herewith are repealed to the extent only of such inconsistency. This repealer shall not be
construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED
PUBLISHED ONCE IN FULL ON FIRST READING this 20th day of October, 2009, and a public
hearing for second reading of this Ordinance set for the 3d day of November 2009, at 6:00 P.M. in
the Council Chambers of the Vail Municipal Building, Vail, Colorado.
ATTEST:
Lorelei Donaldson, Town Clerk
, Mayor
Ordinance No. 22, Series of 2009 5
ATTACHMENT B
Colorado Amendment 20
Ballot Title: An amendment to the Colorado Constitution authorizing the medical use of
marijuana for persons suffering from debilitating medical conditions, and, in connection
therewith, establishing an affirmative defense to Colorado criminal laws for patients and their
primary care-givers relating to the medical use of marijuana; establishing exceptions to
Colorado criminal laws for patients and primary care-givers in lawful possession of a registry
identification card for medical marijuana use and for physicians who advise patients or provide
them with written documentation as to such medical marijuana use; defining "debilitating
medical condition" and authorizing the state health agency to approve other medical conditions
or treatments as debilitating medical conditions; requiring preservation of seized property
interests that had been possessed, owned, or used in connection with a claimed medical use of
marijuana and limiting forfeiture of such interests; establishing and maintaining a confidential
state registry of patients receiving an identification card for the medical use of marijuana and
defining eligibility for receipt of such a card and placement on the registry; restricting access to
information in the registry; establishing procedures for issuance of an identification card;
authorizing fees to cover administrative costs associated with the registry; specifying the form
and amount of marijuana a patient may possess and restrictions on its use; setting forth
additional requirements for the medical use of marijuana by patients less than eighteen years
old; directing enactment of implementing legislation and criminal penalties for certain offenses;
requiring the state health agency designated by the governor to make application forms
available to residents of Colorado for inclusion on the registry; limiting a health insurer's liability
on claims relating to the medical use of marijuana; and providing that no employer must
accommodate medical use of marijuana in the workplace.
Text of Constitutional Amendment:
Be it Enacted by the People of the State of Colorado:
AN AMENDMENT TO THE CONSTITUTION OF THE STATE OF COLORADO, AMENDING
ARTICLE XVIII, ADDING A NEW SECTION TO READ:
Section 14. Medical use of marijuana for persons suffering from debilitating medical conditions.
(1) As used in this section, these terms are defined as follows.
(a) "Debilitating medical condition" means:
(1) Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired
immune deficiency syndrome, or treatment for such conditions;
(II) A chronic or debilitating disease or medical condition, or treatment for such
conditions, which produces, for a specific patient, one or more of the following, and for
which, in the professional opinion of the patient's physician, such condition or conditions
reasonably may be alleviated by the medical use of marijuana: cachexia; severe pain;
severe nausea; seizures, including those that are characteristic of epilepsy; or persistent
muscle spasms, including those that are characteristic of multiple sclerosis; or
(III) Any other medical condition, or treatment for such condition, approved by the state
health agency, pursuant to its rule making authority or its approval of any petition
submitted by a patient or physician as provided in this section.
(b) "Medical use" means the acquisition, possession, production, use, or transportation of
marijuana or paraphernalia related to the administration of such marijuana to address the
symptoms or effects of a patient's debilitating medical condition, which may be authorized only
after a diagnosis of the patient's debilitating medical condition by a physician or physicians, as
provided by this section.
(c) "Parent" means a custodial mother or father of a patient under the age of eighteen years,
any person having custody of a patient under the age of eighteen years, or any person serving
as a legal guardian for a patient under the age of eighteen years.
(d) "Patient" means a person who has a debilitating medical condition.
(e) "Physician" means a doctor of medicine who maintains, in good standing, a license to
practice medicine issued by the state of Colorado.
(f) "Primary care-giver" means a person, other than the patient and the patient's physician, who
is eighteen years of age or older and has significant responsibility for managing the well-being
of a patient who has a debilitating medical condition.
(g) "Registry identification card" means that document, issued by the state health agency, which
identifies a patient authorized to engage in the medical use of marijuana and such patient's
primary care-giver, if any has been designated.
(h) "State health agency" means that public health related entity of state government designated
by the governor to establish and maintain a confidential registry of patients authorized to
engage in the medical use of marijuana and enact rules to administer this program.
(i) "Usable form of marijuana" means the seeds, leaves, buds, and flowers of the plant (genus)
cannabis, and any mixture or preparation thereof, which are appropriate for medical use as
provided in this section, but excludes the plant's stalks, stems, and roots.
(j) "Written documentation" means a statement signed by a patient's physician or copies of the
patient's pertinent medical records.
(2)
(a) Except as otherwise provided in subsections (5), (6), and (8) of this section, a patient or
primary care-giver charged with a violation of the state's criminal laws related to the patient's
medical use of marijuana will be deemed to have established an affirmative defense to such
allegation where:
(1) The patient was previously diagnosed by a physician as having a debilitating medical
condition;
(II) The patient was advised by his or her physician, in the context of a bona fide
physician-patient relationship, that the patient might benefit from the medical use of
marijuana in connection with a debilitating medical condition; and
(III) The patient and his or her primary care-giver were collectively in possession of
amounts of marijuana only as permitted under this section. This affirmative defense shall
not exclude the assertion of any other defense where a patient or primary care-giver is
charged with a violation of state law related to the patient's medical use of marijuana.
2
(b) Effective June 1, 1999, it shall be an exception from the state's criminal laws for any patient
or primary care-giver in lawful possession of a registry identification card to engage or assist in
the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this
section.
(c) It shall be an exception from the state's criminal laws for any physician to:
(1) Advise a patient whom the physician has diagnosed as having a debilitating medical
condition, about the risks and benefits of medical use of marijuana or that he or she
might benefit from the medical use of marijuana, provided that such advice is based
upon the physician's contemporaneous assessment of the patient's medical history and
current medical condition and a bona fide physician-patient relationship; or
(II) Provide a patient with written documentation, based upon the physician's
contemporaneous assessment of the patient's medical history and current medical
condition and a bona fide physician-patient relationship, stating that the patient has a
debilitating medical condition and might benefit from the medical use of marijuana. No
physician shall be denied any rights or privileges for the acts authorized by this
subsection.
(d) Notwithstanding the foregoing provisions, n
giver, shall be entitled to the protection of this
manufacture, production, use, sale, distribution,
any use other than medical use.
person, including a patient or primary care-
section for his or her acquisition, possession,
dispensing, or transportation of marijuana for
(e) Any property interest that is possessed, owned, or used in connection with the medical use
of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or
destroyed while in the possession of state or local law enforcement officials where such
property has been seized in connection with the claimed medical use of marijuana. Any such
property interest shall not be forfeited under any provision of state law providing for the forfeiture
of property other than as a sentence imposed after conviction of a criminal offense or entry of a
plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law
enforcement officials from a patient or primary care-giver in connection with the claimed medical
use of marijuana shall be returned immediately upon the determination of the district attorney or
his or her designee that the patient or primary care-giver is entitled to the protection contained in
this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of
charges, or acquittal.
(3) The state health agency shall create and maintain a confidential registry of patients who
have applied for and are entitled to receive a registry identification card according to the criteria
set forth in this subsection, effective June 1, 1999.
(a) No person shall be permitted to gain access to any information about patients in the state
health agency's confidential registry, or any information otherwise maintained by the state
health agency about physicians and primary care-givers, except for authorized employees of the
state health agency in the course of their official duties and authorized employees of state or
local law enforcement agencies which have stopped or arrested a person who claims to be
engaged in the medical use of marijuana and in possession of a registry identification card or its
functional equivalent, pursuant to paragraph (e) of this subsection (3). Authorized employees of
state or local law enforcement agencies shall be granted access to the information contained
within the state health agency's confidential registry only for the purpose of verifying that an
individual who has presented a registry identification card to a state or local law enforcement
official is lawfully in possession of such card.
(b) In order to be placed on the state's confidential registry for the medical use of marijuana, a
patient must reside in Colorado and submit the completed application form adopted by the state
health agency, including the following information, to the state health agency:
(1) The original or a copy of written documentation stating that the patient has been
diagnosed with a debilitating medical condition and the physician's conclusion that the
patient might benefit from the medical use of marijuana;
(II) The name, address, date of birth, and social security number of the patient;
(III) The name, address, and telephone number of the patient's physician; and
(IV) The name and address of the patient's primary care-giver, if one is designated at the
time of application.
(c) Within thirty days of receiving the information referred to in subparagraphs (3)(b)(I)-(IV), the
state health agency shall verify medical information contained in the patient's written
documentation. The agency shall notify the applicant that his or her application for a registry
identification card has been denied if the agency's review of such documentation discloses that:
the information required pursuant to paragraph (3)(b) of this section has not been provided or
has been falsified; the documentation fails to state that the patient has a debilitating medical
condition specified in this section or by state health agency rule; or the physician does not have
a license to practice medicine issued by the state of Colorado. Otherwise, not more than five
days after verifying such information, the state health agency shall issue one serially numbered
registry identification card to the patient, stating:
(1) The patient's name, address, date of birth, and social security number;
(II) That the patient's name has been certified to the state health agency as a person
who has a debilitating medical condition, whereby the patient may address such
condition with the medical use of marijuana;
(III) The date of issuance of the registry identification card and the date of expiration of
such card, which shall be one year from the date of issuance; and
(IV) The name and address of the patient's primary care-giver, if any is designated at the
time of application.
(d) Except for patients applying pursuant to subsection (6) of this section, where the state health
agency, within thirty-five days of receipt of an application, fails to issue a registry identification
card or fails to issue verbal or written notice of denial of such application, the patient's
application for such card will be deemed to have been approved. Receipt shall be deemed to
have occurred upon delivery to the state health agency, or deposit in the United States mails.
Notwithstanding the foregoing, no application shall be deemed received prior to June 1, 1999. A
patient who is questioned by any state or local law enforcement official about his or her medical
use of marijuana shall provide a copy of the application submitted to the state health agency,
including the written documentation and proof of the date of mailing or other transmission of the
written documentation for delivery to the state health agency, which shall be accorded the same
4
legal effect as a registry identification card, until such time as the patient receives notice that the
application has been denied.
(e) A patient whose application has been denied by the state health agency may not reapply
during the six months following the date of the denial and may not use an application for a
registry identification card as provided in paragraph (3)(d) of this section. The denial of a registry
identification card shall be considered a final agency action. Only the patient whose application
has been denied shall have standing to contest the agency action.
(f) When there has been a change in the name, address, physician, or primary care-giver of
patient who has qualified for a registry identification card, that patient must notify the state
health agency of any such change within ten days. A patient who has not designated a primary
care-giver at the time of application to the state health agency may do so in writing at any time
during the effective period of the registry identification card, and the primary care-giver may act
in this capacity after such designation. To maintain an effective registry identification card, a
patient must annually resubmit, at least thirty days prior to the expiration date stated on the
registry identification card, updated written documentation to the state health agency, as well as
the name and address of the patient's primary care-giver, if any is designated at such time.
(g) Authorized employees of state or local law enforcement agencies shall immediately notify
the state health agency when any person in possession of a registry identification card has been
determined by a court of law to have willfully violated the provisions of this section or its
implementing legislation, or has pled guilty to such offense.
(h) A patient who no longer has a debilitating medical condition shall return his or her registry
identification card to the state health agency within twenty-four hours of receiving such
diagnosis by his or her physician.
(i) The state health agency may determine and levy reasonable fees to pay for any direct or
indirect administrative costs associated with its role in this program.
(4)
(a) A patient may engage in the medical use of marijuana, with no more marijuana than is
medically necessary to address a debilitating medical condition. A patient's medical use of
marijuana, within the following limits, is lawful:
(1) No more than two ounces of a usable form of marijuana; and
(II) No more than six marijuana plants, with three or fewer being mature, flowering plants
that are producing a usable form of marijuana.
(b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-
giver may raise as an affirmative defense to charges of violation of state law that such greater
amounts were medically necessary to address the patient's debilitating medical condition.
(5)
(a) No patient shall:
(1) Engage in the medical use of marijuana in a way that endangers the health or well-
being of any person; or
(II) Engage in the medical use of marijuana in plain view of, or in a place open to, the
general public.
(b) In addition to any other penalties provided by law, the state health agency shall revoke for a
period of one year the registry identification card of any patient found to have willfully violated
the provisions of this section or the implementing legislation adopted by the general assembly.
(6) Notwithstanding paragraphs (2)(a) and (3)(d) of this section, no patient under eighteen years
of age shall engage in the medical use of marijuana unless:
(a) Two physicians have diagnosed the patient as having a debilitating medical condition;
(b) One of the physicians referred to in paragraph (6)(a) has explained the possible risks and
benefits of medical use of marijuana to the patient and each of the patient's parents residing in
Colorado;
(c) The physicians referred to in paragraph (6)(b) has provided the patient with the written
documentation, specified in subparagraph (3)(b)(1);
(d) Each of the patient's parents residing in Colorado consent in writing to the state health
agency to permit the patient to engage in the medical use of marijuana;
(e) A parent residing in Colorado consents in writing to serve as a patient's primary care-giver;
(f) A parent serving as a primary care-giver completes and submits an application for a registry
identification card as provided in subparagraph (3)(b) of this section and the written consents
referred to in paragraph (6)(d) to the state health agency;
(g) The state health agency approves the patient's application and transmits the patient's
registry identification card to the parent designated as a primary care-giver;
(h) The patient and primary care-giver collectively possess amounts of marijuana no greater
than those specified in subparagraph (4)(a)(1) and (11); and
(i) The primary care-giver controls the acquisition of such marijuana and the dosage and
frequency of its use by
the patient.
(7) Not later than March 1, 1999, the governor shall designate, by executive order, the state
health agency as defined in paragraph (1)(g) of this section.
(8) Not later than April 30, 1999, the General Assembly shall define such terms and enact such
legislation as may be necessary for implementation of this section, as well as determine and
enact
(a) Fraudulent representation of a medical condition by a patient to a physician, state health
agency, or state or local law enforcement official for the purpose of falsely obtaining a registry
identification card or avoiding arrest and prosecution;
(b) Fraudulent use or theft of any person's registry identification card to acquire, possess,
produce, use, sell, distribute, or transport marijuana, including but not limited to cards that are
6
required to be returned where patients are no longer diagnosed as having a debilitating medical
condition;
(c) Fraudulent production or counterfeiting of, or tampering with, one or more registry
identification cards; or
(d) Breach of confidentiality of information provided to or by the state health agency.
(9) Not later than June 1, 1999, the state health agency shall develop and make available to
residents of Colorado an application form for persons seeking to be listed on the confidential
registry of patients. By such date, the state health agency shall also enact rules of
administration, including but not limited to rules governing the establishment and confidentiality
of the registry, the verification of medical information, the issuance and form of registry
identification cards, communications with law enforcement officials about registry identification
cards that have been suspended where a patient is no longer diagnosed as having a debilitating
medical condition, and the manner in which the agency may consider adding debilitating
medical conditions to the list provided in this section. Beginning June 1, 1999, the state health
agency shall accept physician or patient initiated petitions to add debilitating medical conditions
to the list provided in this section and, after such hearing as the state health agency deems
appropriate, shall approve or deny such petitions within one hundred eighty days of submission.
The decision to approve or deny a petition shall be considered a final agency action.
(10)
(a) No governmental, private, or any other health insurance provider shall be required to be
liable for any claim for reimbursement for the medical use of marijuana.
(b) Nothing in this section shall require any employer to accommodate the medical use of
marijuana in any work place.
(11) Unless otherwise provided by this section, all provisions of this section shall become
effective upon official declaration of the vote hereon by proclamation of the governor, pursuant
to article V, section (1)(4), and shall apply to acts or offenses committed on or after that date.
7
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Attachment D
Vail law: Colorado's medical marijuana laws
Use of medical marijuana in Vail and Colorado is narrowly defined
By Rohn Robbins
Vail, CO Colorado
Printed in the Vail Daily on September 29, 2009
VAIL, Colorado - Pot dispensaries have come to Colorado's Vail Valley. Some may argue
these dispensaries make it an even happier place. But that misses the point. The pot in those
dispensaries, while just as capable of happy-making as any other pot, is for medical purposes
only. Got that? No sniggering allowed.
While debate may yet rage over the medicinal benefits of marijuana, the fact remains that
medicinal use of marijuana is perfectly legal in Colorado. Its use, however, is narrowly confined.
Treating a 'debilitating condition'
Following ratification by the voters in November of 2000, Colorado's medical marijuana law was
adopted Dec. 28, 2000 and is found in Article 18, Section 14 of the Colorado State Constitution.
The law's formal title is "Medical use of marijuana for person suffering from debilitating medical
conditions." The title speaks volumes about the limitations of its legal use.
"Debilitating condition" is limited to cancer, glaucoma, AIDS/HIV-positive, or other chronic
diseases or medical conditions for which the medicinal use of marijuana produces alleviation of
wasting, pain, nausea, seizures, or persistent muscle spasms. The patient's physician must
certify that the patient's symptoms may "reasonably" be ameliorated by the use of marijuana.
"Medical use" is also specifically defined and contemplates that marijuana may be acquired,
produced, possessed and used only in relation to a patient's illness after diagnosis by the
patient's physician. The physician must be in good standing and licensed to practice medicine in
Colorado. The relationship between the doctor and the patient must be genuine.
Possession and use of marijuana for medical purposes is an exception from the state's criminal
laws, and unless all criteria of its use for medical purposes are met, the patient and/or the
patient's primary care-giver may be charged with one or more crimes.
Neither the doctor prescribing medical marijuana nor the patient (and/or primary care-giver) will
be exempt from criminal prosecution if the acquisition, possession, manufacture, use,
distribution or sale is for any reason other than legitimate medical use.
Who qualifies?
The state health agency maintains a confidential registry of patients who have applied for, and
are entitled to receive, a registry identification card. Criteria to qualify for the card include
residency within the Colorado and completion of the form adopted by the state. The form
requires identifying information about both the patient and physician.
State officials must verify the medical information within 30 days of receiving the form. The
application may be denied if the information has not been provided or is falsified; the
documentation fails to state that the patient has a debilitating medical condition; the condition
does not qualify; or the physician does not have a valid license to practice in the state. If the
patient qualifies, the state has five days to issue a registry card.
Besides identifying information about the patient, and certification by the state health agency
that the person qualifies for the card, the card contains both the date of issuance and its
expiration - one year from the date of issue. A patient who is questioned by law enforcement
about his use of marijuana must provide his card.
A patient may not reapply for at least six months if his or her application is denied. If the agency
fails to either deny the application or issue a registry card within 35 days after the application is
submitted, the application is deemed to have been approved. If questioned by law enforcement,
the patient must provide a copy of his application, including the written documentation and proof
of the date of mailing or other delivery to the state health agency. In these circumstances, the
application will be accorded the same legal effect as a registry identification card, until, at least,
the patient receives notice that the application has been denied.
An approved patient may use marijuana, but only in a "medically necessary" amount. That
means he may possess no more than two ounces in useable form and have no more than six
marijuana plants with three or fewer being mature, flowering plants. The patient may not use
marijuana openly or in public.
Any person who commits fraud in representing a medical condition to a physician, the
department of health, or a state or local law enforcement official for the purpose of falsely
obtaining a marijuana registry card, or for the purpose of avoiding arrest and prosecution for a
marijuana-related offense, commits a class 1 misdemeanor. Similarly, the fraudulent production,
counterfeiting or tampering with a registry card is a class 1 misdemeanor.
While perhaps controversial, there are those who sing the praises and medicinal virtues of
marijuana. In any event, those who seek medical marijuana must ensure that they comply with
the procedures and conditions of its possession and its use.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who
practices in the Vail Valley.
2
I
r
PLANNING AND ENVIRONMENTAL COMMISSION
6~ October 12, 2009
1:OOpm
TOWN Of VAS''
TOWN COUNCIL CHAMBERS / PUBLIC WELCOME
75 S. Frontage Road - Vail, Colorado, 81657
MEMBERS PRESENT MEMBERS ABSENT
Michael Kurz
Bill Pierce
Rollie Kjesbo
Dave Viele
Scott Lindall
Susie Tjossem
Sarah Paladino
Site Visits:
No Site Visits
60 minutes
1. A request for a final recommendation to the Vail Town Council on prescribed regulation
amendments, pursuant to Section 12-3-7, Amendment, Vail Town Code for amendments to Title
12, Zoning Regulations, Vail Town Code, to allow for medical marijuana dispensaries as a land
use in specific zone districts, and setting for details in regard thereto. (PEC090030)
Applicant: Town of Vail
Planner: Rachel Friede
ACTION: Recommendation of approval
MOTION: Kjesbo SECOND: Kurz VOTE: 7-0-0
CONDITIONS:
1. Add medical marijuana dispensaries as a conditional use to the General Use (GU)
District.
2. In Subsection 12-16-7A-17A, change "50 ft" to "100 ft."
3. In Subsection 12-16-7A-17C, change "at medical marijuana dispensaries" to "on-site."
4. In Subsection 12-16-7A-17D, change "sale" to "distribution."
5. In Subsection 12-16-7A-17H, change "marijuana paraphernalia" to "drug
paraphernalia."
6. In Subsection 12-16-7A-17J, change "main entrance" to "all entrances."
Rachel Friede gave a presentation on the proposed addition of medical marijuana dispensaries
(MMDs) as a new land use per the staff memorandum. Ms. Friede covered all the proposed
amendments to allow for MMDs in certain zone districts.
Jim Lamont, Vail Homeowners Association, asked whether the Town is obligated to allow MMDs
in the Town of Vail. Rachel Friede responded that the Town is not obligated to allow this use.
Mr. Lamont asked what other similar communities have enacted ordinances to permit MMDs.
Ms. Friede responded that similar regulations have been passed in Breckenridge, Glenwood
Springs, Commerce City and Northglenn. She also noted that Aspen has chosen not to regulate
MMDs but is allowing them as a pharmacy. Mr. Lamont, stated that the Vail Homeowners
Association has not official taken a stance on this proposed land use.
Commissioner Kurz asked for clarification regarding the exclusion of the land use for certain
zone districts.
Page 1
Commissioner Tjossem inquired as to why the hospital was not included. Ms. Friede responded
that the hospital is in the General Use District, which is mostly town-owned properties. Ms.
Friede also noted that this use has not been established in any hospitals in Colorado.
Commissioner Kjesbo stated that he too wondered why the hospital was not included.
Commissioner Viele had nothing further to add.
Commissioner Lindall inquired as to the benefits of adding this land use. Ms. Friede stated that
there is potential sales tax revenue from this use, and it will also expand the number and types of
businesses within the Town.
Commissioner Kurz said he was concerned that the overall number of MMDs within a close
distance of each other could have a negative impact on surrounding land uses. He suggested
that a maximum number be allowed in each zone district or in the Town.
Ms. Friede suggested that a conversation with the Town Attorney may be warranted to address
this concern. She suggested that it might be able to be handled through a limitation on the
number of issued business licenses. Commissioner Pierce suggested that this concern could be
addressed with each conditional use permit application.
Commissioner Kjesbo said he believes that the land use will be fairly self-regulating, as the
market will only require a certain amount of MMDs.
Commissioner Pierce suggested that the General Use District be added to allow the hospital to
have MMDs.
Commissioner Kurz inquired as to the possibility of increasing control over the naming of
business so as to not deviate from the medical intent of the business. Ms. Friede responded that
while the name of the business might not be controllable due to the First Amendment freedom of
speech, the depiction of marijuana and drug paraphernalia on signage would be prohibited.
Commissioner Pierce asked the other Commissioners if they would want to increase the
distance between MMDs and schools.
Commissioner Palladino stated that security cameras should be required for all entrances, not
just main entrances.
A motion was made for a recommendation of approval with modifications to include the GU
District, increase the required distance between MMDs, other MMDs and schools to 100 ft, and
to require cameras at all entrances, as well as some changes to terminology.
60 minutes
2. A request for a work session to discuss prescribed regulations amendments, pursuant to Section
12-3-7, Amendment, Vail Town Code, to Title 12, Zoning Regulations, Vail Town Code, and
setting forth details in regard thereto. (PEC090017)
Applicant: Town of Vail
Planner: Rachel Friede
ACTION: Tabled to October 26, 2009
MOTION: Viele SECOND: Kjesbo VOTE: 7-0-0
Rachel Friede gave a presentation per the staff memorandum.
Page 2
Commissioner Viele inquired as to the statement of sustainability as an intent of the Zoning
Regulations. He stated that the language was too vague yet restrictive and could have serious
ramifications for building within the Town.
Commissioner Pierce requested that Ms. Friede generally describe the changes versus reading
the entirety of the submitted documents.
Commissioners provided feedback on specific ideas, thoughts and concerns they had from
reading the proposed language.
5 minutes
3. A request for a final recommendation for the adoption of the Frontage Road Lighting Master
Plan, an element of the Vail Transportation Master Plan, and setting forth details in regard
thereto. (PEC090014)
Applicant: Town of Vail, represented by Tom Kassmel
Planner: Bill Gibson
ACTION: Tabled to October 26, 2009
MOTION: Viele SECOND: Kjesbo VOTE: 7-0-0
5 minutes
4. A request for a work session to discuss a conditional use permit, pursuant to Section 12-9C-3,
Conditional Uses, Vail Town Code, to allow for the construction of public buildings and grounds
(fire station), located at 2399 North Frontage Road/Parcel A, Resub of Tract D, Vail Das Schone
Filing 1, and setting forth details in regard thereto. (PEC090019)
Applicant: Town of Vail
Planner: Bill Gibson
ACTION: Tabled to October 26, 2009
MOTION: Viele SECOND: Kjesbo VOTE: 7-0-0
5. Approval of September 28, 2009 minutes
MOTION: Kurz SECOND: Tjossem VOTE: 7-0-0
6. Information Update
The Commissioners were invited to partake in the Trees for Vail program buy adopting and
planting a tree.
Discussion occurred around the number of scheduled meetings for the Commission in the
coming months.
7. Adjournment
MOTION: Lindall SECOND: Kurz VOTE: 7-0-0
STAFF APPROVALS:
A conditional use permit amendment, pursuant to Section 12-16-10, Amendment Procedures, Vail
Town Code, to allow for a one year extension of a previously approved conditional use permit
(PEC070064) for the development of public buildings, grounds and facilities (temporary public
parking lot) located at Parcel A, Vail das Schone Filing 1 (former Wendy's Restaurant site), and
setting forth details in regard thereto. (PEC090031)
Applicant: Town of Vail
Planner: Bill Gibson
Page 3
The applications and information about the proposals are available for public inspection during regular
office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The
public is invited to attend the project orientation and the site visits that precede the public hearing in the
Town of Vail Community Development Department. Please call (970) 479-2138 for additional
information.
Sign language interpretation is available upon request with 24-hour notification. Please call (970)
479-2356, Telephone for the Hearing Impaired, for information.
Community Development Department
Published October 9, 2009, in the Vail Daily.
t
Page 4
(10/19/2009) Rachel Friede - RE: additional legal question Page 1
From: "Charissa Eckhout" <cae@hphclaw.com>
To: "Kendra Carberry" <klc@hphclaw.com>, "Rachel Friede" <RFriede@vailgov.co.
CC: "Matt Mire" <mmire@vailgov.com>
Date: 10/16/2009 12:37 PM
Subject: RE: additional legal question
Hi Rachel,
I've taken a look at the statute cited by the Eagle County Sheriffs
Department, and I disagree with the Department's analysis. C.R.S.
18-18-407 provides that a defendant is a "special offender' if he or she
sells a controlled substance within 1,000 feet of any school, park,
public housing development, etc.
However, Amendment 20 expressly exempts primary caregivers and patients
from state criminal laws prohibiting the possession and acquisition of
marijuana for medical uses. Thus, because a lawfully operating
dispensary is, at its most basic level, a caregiver and patient
relationship, people running an MMD are exempt from criminal
prosecution. In turn, they cannot be deemed "special offenders" under
C.R.S. 18-18-407.
In sum, the Town may certainly require a 1,000 foot distance limitation
from schools; however, C.R.S. 18-18-407 does not require any such
limitation.
If you have any questions, please do not hesitate to contact me.
Thanks.
Charissa A. Eckhout
Hayes, Phillips, Hoffmann & Carberry, P.C.
Ph: 303-825-6444
Fax: 303-825-1269
-----Original Message----
From: Kendra Carberry
Sent: Wednesday, October 14, 2009 9:02 PM
To: Rachel Friede
Cc: Matt Mire; Charissa Eckhout
Subject: RE: additional legal question
Rachel,
Just let me know what you would like us to do, and we would be glad to
help out.
As for the MMDs, by copy of this email, I will ask Charissa to answer
the question regarding C.R.S. 18-18-407 in more detail, but my initial
reaction is that, while the Town could certainly adopt a 1000 foot
minimum distance requirement through a zoning ordinance, C.R.S.
18-18-407 does not automatically provide for such a distance.
Thanks.
Kendra L. Carberry
Hayes, Phillips, Hoffmann & Carberry, P.C.
(303) 951-2095 - direct
(303) 825-6444 - office
(303) 825-1269 - fax
-----Original Message-----
From: Rachel Friede [mailto:RFriede@vailgov.com]
Sent: Wednesday, October 14, 2009 5:41 PM
To: Kendra Carberry
Subject: additional legal question
(10/19/2009) Rachel Friede - RE. additional legal question Page 2 1
Kendra- George asked me to create a basic scope of work and deliverables
for the review of the zoning regulations. I will get that drafted and
sent off to you for comments. We are trying to get a contract signed by
the end of 2009 so we can use 2009 budget money for your services.
George also said that he would like both you and Carissa to work with us
on this.
I got your message about MMDs, and I will talk to matt and the Town
Council next week about this issue. Another issue popped up when a rep
for the Eagle County Sheriffs Office called me to discuss the required
distance from schools. Sorry to bother you about this, but Im hoping
this falls under the retainer the town has with you. (Please let me
know)
Anyway, the Sherriffs Dept contends that CRS 18-18-407-1-2a would
require that an MMD be a minimum of 1,000 sq ft from any schools. I
read it and I think she's wrong, based on the fact that this section is
only about sentencing and making someone a special offender when
sentencing. Also, I think it is an incorrect assumption because
Amendment 20 protects a patient and caregiver when its for medical use.
What are your thoughts on this? Does Amendment 20 actually protect the
sale between a caregiver and patient?
Thanks so much for your help!!!!
Rachel
Rachel Friede, AICP, LEED AP
Planner II
Dept of Community Development
Town of Vail
Ph: (970)479-2440
Fax: (970)479-2452
Rfriede@vailgov.com
www.vailgov.com/comdev
MEMORANDUM
TO: Vail Town Council
FROM: Community Development Department
DATE: October 20, 2009
SUBJECT: First reading of Ordinance No. 22, Series of 2009, an ordinance amending Title 12,
Zoning Regulations, Vail Town Code, to allow medical marijuana dispensaries as a
conditional use in the Commercial Core III, Arterial Business, General Use and
Commercial Service Center Districts, and setting forth details in regard thereto.
Applicant: Town of Vail
Planner: Rachel Friede
DESCRIPTION OF THE REQUEST
The applicant, Town of Vail, is requesting a first reading of Ordinance No. 22, Series of 2009, an
ordinance amending Title 12, Zoning Regulations, Vail Town Code, to allow medical marijuana
dispensaries as a conditional use in the Commercial Core III, Arterial Business, General Use and
Commercial Service Center Districts, and setting forth details in regard thereto (see Attachment
A).
II. BACKGROUND
In November 2000, Coloradoans passed Amendment 20 to the Colorado Constitution, legalizing
the use of medical marijuana. Amendment 20 created an exception to the state's criminal laws
for any patient or primary care-giver in lawful possession of a registry identification card to
engage or assist in the medical use of marijuana. Amendment 20 also created an exception to
the state's criminal laws for physicians to advise and authorize medical marijuana use for patients
who have been diagnosed with debilitating medical conditions.
While possession and use of medical marijuana is regulated by the State, the sale of medical
marijuana is not regulated by the State. As a result, new businesses in the form of medical
marijuana dispensaries (MMDs) are appearing under the interpretation that the business is a
primary caregiver for those diagnosed with debilitating medical conditions. The State has
deferred to local jurisdictions to regulate MMDs, typically through business licensing, nuisance
and zoning regulations.
On October 12, 2009, the Planning and Environmental Commission (PEC) held a hearing on the
proposed text amendments (see Attachment B for Staff memorandum to the PEC). Becaus
the potentially controversial nature of this application, Staff sent a courtesy notice to Pa
properties within and adjacent to the subject zone districts prior to the hearing. In response, received two phone calls from adjacent property owners, both of which had no comment on the
matter. At the PEC hearing, there was one public comment from Jim Lamont, which is included
in the attached PEC minutes (see Attachment C). The PEC forwarded a recommendation of
approval, with modifications, to the Vail Town Council, with a vote of 7-0-0. See Attachment A for
the Staff memorandum to the PEC, dated October 12, 2009. The PEC approval included the
following modifications, which are highlighted in Ordinance No. 22, Series of 2009:
1. Add medical marijuana dispensaries as a conditional use to the General Use (GU) District.
2. Change "50 feet" to "100 feet" in the following use specific criteria: "Medical Marijuana
Dispensaries shall be located a minimum of fifty feet from any school or educational facility
serving persons under eighteen (18) years of age or any other medical marijuana
dispensary. "
3. Change "main entrances" to "all entrances" in the following use specific criteria: "Medical
marijuana dispensaries shall install security surveillance cameras to monitor the main
entrance and the exterior of the premises to discourage and to facilitate the reporting of
criminal acts as well as nuisance activities. "
4. Change "at medical marjuana dispensaries" to "on-site" in the following use specific criteria:
"Consumption of medical marijuana in any form is prohibited at medical marijuana
dispensaries. "
5. Change "sale" to "distribution" in the following use specific criteria: "Growing and/or the sale
of live marijuana plants is prohibited at medical marijuana dispensaries."
6. Change "marijuana paraphernalia" to "drug paraphernalia" in the following use specific
criteria: "Any signage that is visible to the public from roadways, pedestrian walkways or from
other public areas shall not contain graphics of marUuana or marijuana paraphernalia. "
III. ACTION REQUESTED
The Vail Town Council shall approve, approve with modifications, or deny Ordinance No. 22,
Series of 2009, upon first reading.
IV. PLANNING AND ENVIRONMENTAL COMMISSION RECOMMENDATION
On October 12, 2009, the Planning and Environmental Commission (PEC) unanimously
forwarded a recommendation of approval, with modifications, to the Vail Town Council. Should
the Vail Town Council choose to approve Ordinance No. 22, Series of 2009, the Community
Development Department recommends the Council make the following motion:
"Based upon the review of the criteria outlined in Section V of Staff's October 12, 2009
memorandum to the Planning and Environmental Commission, and the evidence and
testimony presented, the Vail Town Council approves on first reading Ordinance No. 22,
Series of 2009, an ordinance amending Title 12, Zoning Regulations, Vail Town Code, to
allow medical marijuana dispensaries as a conditional use in the Commercial Core lll,
Arterial Business, General Use and Commercial Service Center Districts, and setting forth
details in regard thereto, with the following findings:
1. That the amendment is consistent with the applicable elements of the adopted goals,
objectives and policies outlined in the Vail Comprehensive Plan and is compatible with
the development objectives of the Town; and
2. That the amendment furthers the general and specific purposes of the Zoning
Regulations outlined in Section 12-1-2, Purpose, Vail Town Code; and
3. That the amendment promotes the health, safety, morals, and general welfare of the
Town and promotes the coordinated and harmonious development of the Town in a
manner that conserves and enhances its natural environment and its established
character as a resort and residential community of the highest quality. "
V. ATTACHMENTS
A. Ordinance No. 22, Series of 2009
B. PEC memo dated October 12, 2009 (Attachments A and C of this memo omitted)
C. Excerpt of minutes from October 12, 2009 PEC meeting
D. Maps of Districts in Consideration in Relation to Schools
ATTACHMENT B
MEMORANDUM
TO: Planning and Environmental Commission
FROM: Community Development Department
DATE: October 12, 2009
SUBJECT: A request for a final recommendation to the Vail Town Council on prescribed
regulation amendments, pursuant to Section 12-3-7, Amendment, Vail Town Code
for amendments to Title 12, Zoning Regulations, Vail Town Code, to allow for
medical marijuana dispensaries as a land use in specific zone districts, and setting
forth details in regard thereto. (PEC090030)
Applicant: Town of Vail
Planner: Rachel Friede
SUMMARY
The applicant, the Town of Vail, is requesting a final recommendation to the Vail Town
Council for prescribed regulations amendments (Ordinance No. 22, Series of 2009)
pursuant to Section 12-3-7, Amendment, Vail Town Code, for amendments to Title 12,
Zoning Regulations, Vail Town Code, to allow for medical marijuana dispensaries (MMD) as
a land use in specific zone districts, and setting forth details in regard thereto.
Based upon Staff's review of the criteria outlined in Section V of this memorandum and the
evidence and testimony presented, the Community Development Department recommends
the Commission forward a recommendation of approval, with the findings noted in
Section VI of this memorandum.
II. BACKGROUND
In November, 2000, Coloradoans passed Amendment 20 to the Colorado Constitution,
legalizing the use of medical marijuana. Amendment 20 created an exception to the state's
criminal laws for any patient or primary care-giver in lawful possession of a registry
identification card to engage or assist in the medical use of marijuana. Amendment 20 also
created an exception to the state's criminal laws for physicians to advise and authorize
medical marijuana use for patients who have been diagnosed with debilitating medical
conditions.
While possession and use of medical marijuana is regulated by the State, the sale of
medical marijuana is not regulated by the State. As a result, new businesses in the form of
medical marijuana dispensaries (MMDs) are appearing under the interpretation that the
business is a primary caregiver for those diagnosed with debilitating medical conditions.
The State has deferred to local jurisdictions to regulate MMDs, typically through business
licensing, nuisance and zoning regulations.
Unlike sexually oriented businesses, which operate under the first amendment right to
freedom of speech within the U.S. Constitution, there is no constitutional right to operate a
medical marijuana dispensary. To the contrary, the operation of such facilities is the result
of an interpretive loophole within the Colorado Constitution, rather than any express U.S.
constitutional or statutory authority. It is the right to use medical marijuana that is protected
under the Colorado Constitution.
Ill. DESCRIPTION OF REQUEST
Title 12, Zoning Regulations, Vail Town Code, does not specifically address MMDs, which
are a hybrid of retail, pharmacy and medical office. Because the land use is not listed
within any zone district in the Town of Vail, it is thereby not permitted. However, pursuant
to Section 12-3-4, Determination of Similar Use, Vail Town Code, an applicant could
request that the Vail Town Council make a determination that MMDs are a similar use to a
land use listed within the regulations. Because of the recent increase in MMDs in the
region, the Town of Vail has identified this as an issue that needs to be addressed. There
are three courses of action that the Town of Vail could take to address MMDs:
1. No changes to the Vail Town Code, which would effectively ban medical marijuana
dispensaries within the Town; or
2. Amend the Vail Town Code to allow medical marijuana dispensaries anywhere within
the Town; or
3. Amend the Vail Town Code to define, permit and regulate medical marijuana
dispensaries within appropriate zone districts within the Town of Vail.
The purpose of the proposed Ordinance No. 22, Series of 2009 is to take the third listed
course of action and proactively address MMDs through amendments to Title 12, Zoning
Regulations, Vail Town Code. There have been numerous inquiries to the Community
Development Department regarding MMDs by parties interested in opening these
businesses in Vail. New businesses contribute sales tax and provide additional economic
benefits to the community. MMDs could be a compatible use, and Staff examined all zone
district characteristics to determine which zone districts would be appropriate for this use.
Because of the resort community nature of the Town of Vail, certain zone districts were
deemed inappropriate for this use. Staff determined that the most appropriate zone districts
for MMDs are the Commercial Core III, Arterial Business and Commercial Service Center
Districts. The purpose statements and underlying land use of these districts lends support
for the additional of MMDs as a conditional use, as is further discussed in Section V of this
memorandum.
The proposed text amendments are included in the draft Ordinance No. 22, Series of 2009,
which is found in Attachment A. The regulations provide a definition of medical marijuana
dispensaries and allow MMDs as a conditional use in Commercial Core III (CC3),
Commercial Service Center (CSC), and Arterial Business (ABD) Districts. Use specific
criteria are also established for MMDs, including the regulation of distance from schools,
distance from each other, signage, security, and business practices. Zone District Maps
are included in Attachment C for reference.
IV. APPLICABLE DOCUMENTS
TITLE 12, ZONING REGULATIONS, VAIL TOWN CODE (IN PART):
12-1-2: PURPOSE
A. General: These regulations are enacted for the purpose of promoting the health, safety,
morals, and general welfare of the Town, and to promote the coordinated and
harmonious development of the Town in a manner that will conserve and enhance its
natural environment and its established character as a resort and residential
community of high quality.
B. Specific: These regulations are intended to achieve the following more specific
purposes:
1. To provide for adequate light, air, sanitation, drainage, and public facilities.
2. To secure safety from fire, panic, flood, avalanche, accumulation of snow, and other
dangerous conditions.
3. To promote safe and efficient pedestrian and vehicular traffic circulation and to
lessen congestion in the streets.
4. To promote adequate and appropriately located off street parking and loading
facilities.
5. To conserve and maintain established community qualities and economic values.
6. To encourage a harmonious, convenient, workable relationship among land uses,
consistent with municipal development objectives.
7. To prevent excessive population densities and overcrowding of the land with
structures.
8. To safeguard and enhance the appearance of the town.
9. To conserve and protect wildlife, streams, woods, hillsides, and other desirable
natural features.
10. To assure adequate open space, recreation opportunities, and other amenities and
facilities conducive to desired living quarters.
11. To otherwise provide for the growth of an orderly and viable community.
ARTICLE 12-7E. COMMERCIAL SERVICE CENTER (CSC) DISTRICT
12-7E-1: PURPOSE: The commercial service center district is intended to provide sites for
general shopping and commercial facilities serving the town, together with limited multiple-
Taimily dwelling and lodge uses as may be appropriate without interfering with the basic
commercial functions of the zone district. The commercial service center district is intended
to ensure adequate light, air, open space, and other amenities appropriate to permitted
types of buildings and uses, and to maintain a convenient shopping center environment for
permitted commercial uses.
ARTICLE 12-7F: ARTERIAL BUSINESS (ABD) DISTRICT
12-7F-1: PURPOSE: The arterial business district is intended to provide sites for office.
space, public r~litles, S'anlice f~ ~..~%ons limited light industry having no adverse
environmental impacts that provides significant on site tourist amenities and limited
shopping and commercial facilities serving the town and Upper Eagle Valley residents and
guests. Multiple-family dwellings for use as employee housing will be appropriate under
specific circumstances. The arterial business district is intended to ensure adequate light,
air, open space, and other amenities appropriate to permitted and conditional types of
buildings and uses, and to maintain a convenient (limited) shopping, business, service, and
residential environment.
CHAPTER 12-16: CONDITIONAL USE PERMITS
12-16-6: CRITERIA; FINDINGS:
A. Factors Enumerated: Before acting on a conditional use permit application, the planning
and environmental commission shall consider the following factors with respect to the
proposed use:
1. Relationship and impact of the use on development objectives of the town.
2. Effect of the use on light and air, distribution of population, transportation facilities,
utilities, schools, parks and recreation facilities, and other public facilities and public
facilities needs.
3. Effect upon traffic, with particular reference to congestion, automotive and
pedestrian safety and convenience, traffic flow and control, access, maneuverability,
and removal of snow from the streets and parking areas.
9
4. Effect upon the character of the area in which the proposed use is to be located,
including the scale and bulk of the proposed use in relation to surrounding uses.
5. Such other factors and criteria as the commission deems applicable to the proposed
use.
6. The environmental impact report concerning the proposed use, if an environmental
impact report is required by chapter 12 of this title.
B. Necessary Findings: The planning and environmental commission shall make the
following findings before granting a conditional use permit:
1. That the proposed location of the use is in accordance with the purposes of this title
and the purposes of the zone district in which the site is located.
2. That the proposed location of the use and the conditions under which it would be
operated or maintained will not be detrimental to the public health, safety, or
welfare, or materially injurious to properties or improvements in the vicinity.
3. That the proposed use will comply with each of the applicable provisions of this title
VAIL LAND USE PLAN (IN PART)
Community Commercial: This area includes activities aimed at accommodating the
overnight and short-term visitor to the area. Primary uses include hotels, lodges, service
stations, and parking structures (with densities up to 25 dwelling units or 50 accommodation
units per buildable acre). These areas are oriented toward vehicular access from 1-70, with
other support commercial and business services included. Also allowed in this category,
would be institutional uses and various mugicipal uses. _ 0
Community Office: This area is to include primarily office uses of all types. Some limited
commercial uses, such as retail businesses; including general merchandise, apparel and
accessories and auto service facilities would also be permitted.
V. REVIEW CRITERIA
The extent to which the text amendment furthers the general and specific
purposes of the Zoning Regulations; and
The proposed text amendments provide a medical land use within the Town of Vail,
thus furthering the general purpose of the Zoning Regulations of "promoting the health,
safety, morals, and general welfare of the Town." By addressing the allowable zone
districts for this use, the text amendments also further the general purpose "to promote
the coordinated and harmonious development of the Town." The specific purpose of
securing safety from dangerous conditions is addressed by the use specific criteria that
requires security on site. The specific purpose to "conserve and maintain established
community qualities and economic values" is met by the use specific criteria that
safeguards the community from any undesirable qualities and follows economic values
of expanding types of businesses and land uses. The use specific criteria regulating
signage and advertisements aims to "safeguard and enhance the appearance of the
Town" another specific purpose. The introduction of the use itself provides new
business opportunity and new services for the community, which furthers the specific
purposes of assuring adequate amenities and "to otherwise provide for the growth of an
orderly and viable community."
2. The extent to which the text amendment would better implement and better
achieve the applicable elements of the adopted goals, objectives, and policies
outlined in the Vail Comprehensive Plan and is compatible with the development
objectives of the Town; and
10
By addressing MMDs through regulations, the text amendments provide controlled
growth of land uses and ensure that this land use is in appropriate locations. This better
achieves the goal of the Land Use Plan stating, "Vail should continue to grow in a
controlled environment, maintaining a balance between residential, commercial and
recreational uses to serve both the visitor and the permanent resident." Since the
proposed regulations require that MMDs be located in specific commercial and business
districts, the amendments help to achieve another goal in the Land Use Plan, which is
that "commercial growth should be concentrated in existing commercial areas to
accommodate both ca an or needs. "
3. The extent to which the text amendment demonstrates how conditions have
substantially changed since the adoption of the subject regulation and how the
existing regulation is no longer appropriate or is inapplicable; and
The adoption of Amendment 20 to the State of Colorado Constitution in 2000 set the
stage for allowing MMDs through legal loopholes. Recently, at least five MMDs have
opened in Eagle County. At least four different entities have expressed interest in
opening MMDs in Vail. The proposed text amendments are a direct result of these
changes to conditions, and reflect the Town's efforts to be proactive in this changing
environment.
4. The extent to which the text amendment provides a harmonious, convenient,
workable relationship among land use regulations consistent with municipal
development objectives.
Staff believes the text amendments provide a harmonious, convenient and workable
relationship about land use regulations because the districts selected to include MMDs
are appropriate and compatible with this use. While the Commercial Core 3 (CC3)
District does not have a purpose statement, the District as a whole is the sole location of
the Community Commercial designation in the Vail Land Use Plan. The Community
Commercial designation includes commercial serving the local community. The CC3
District and Community Commercial designation encompass the properties in West Vail
from the Brandess Building along the Frontage Road to 7-11 plus the Chamonix
property. Allowed land uses in this district include a wide variety of commercial
activities, such as offices, retail, supermarket, restaurant and banks. MMDs as a land
use are appropriate for this zone district and the underlying land use designation.
The purpose statement of the Arterial Business District (ABD) includes references to
providing for offices that serve the local and tourist community. The underlying land use
designation of the entire ABD is Community Office. This designation includes both
properties zoned ABD as well as the Glen Lyon Office Building across the street.
Because MMDs are a hybrid of existing uses including office, it would be an appropriate
land use for this district and land use designation.
The Commercial Service Center District consists of three properties, including Solaris,
US Bank Building, and the Gateway Building. All three properties are also Special
Development Districts that rely on underlying zoning for allowable land uses. All three
properties include office space, and the US Bank Building includes a bank and medical
offices. The purpose of the Commercial Service Center District is to provide for
commercial with limited residential uses. Medical marijuana dispensaries would be
appropriate in the Commercial Service Center District because of the concentration on
commercial and not residential uses.
The use specific criteria that requires MMDs to be located a minimum of 50 feet from
schools ensures that the MMDs will not conflict with incompatible land uses within the
11
same zone district. Required distances between two MMDs provides a safeguard that
this use will not overpower other uses, thus maintaining a workable relationship among
all land uses. Distances between MMDs and schools will be measured in a straight line,
without regard to intervening structures, from the closest exterior structural wall of each
business. Attachment C includes a map that depicts schools and distances to the zone
districts in consideration for MMDs.
5. Such other factors and criteria the Commission and/or Council deem applicable
to the proposed text amendment.
VI. STAFF RECOMMENDATION
The Community Development Department recommends the Planning and Environmental
Commission forwards a recommendation of approval to the Vail Town Council for
prescribed regulations amendments, pursuant to Section 12-3-7, Amendment, Vail Town
Code for amendments to Title 12, Zoning Regulations, Vail Town Code, to allow for medical
marijuana dispensaries as a land use in specific zone districts, and setting forth details in
regard thereto.
Should the Planning and Environmental Commission choose to forward a
recommendation of approval of this request, the Community Development Department
recommends the Commission pass the following motion:
"Based upon the review of the criteria outlined in Section V of Staff's October 12,
2009 memorandum and the evidence and testimony presented, the Planning and
Environmental Commission forwards a recommendation of approval to the Vail
Town Council, pursuant to Section 12-3-7, Amendment, Vail Town Code for
amendments to Title 12, Zoning Regulations, Vail Town Code, to allow for medical
marijuana dispensaries as a land use in specific zone districts, and setting forth
details in regard thereto, with the following findings:
4. That the amendment is consistent with the applicable elements of the adopted
goals, objectives and policies outlined in the Vail Comprehensive Plan and is
compatible with the development objectives of the Town; and
5. That the amendment furthers the general and specific purposes of the Zoning
Regulations outlined in Section 12-1-2, Purpose, Vail Town Code; and
6. That the amendment promotes the health, safety, morals, and general welfare of
the Town and promotes the coordinated and harmonious development of the
Town in a manner that conserves and enhances its natural environment and its
established character as a resort and residential community of the highest
quality. "
VII. ATTACHMENTS
A. Ordinance No. 22, Series of 2009
B. Amendment 20: State of Colorado Regulations on Medical Marijuana
C. Relevant Maps
D. Robbins, Rohn. "Vail law: Colorado's medical marijuana laws: Use of medical
marijuana in Vail and Colorado is narrowly defined." Vail Daily, 9/29/09
12
ATTACHMENT A OMITTED FOR TOWN COUNCIL MEMO ATTACHMENT
ORDINANCE NO. 22, SERIES OF 2009 IS IN ATTACHMENT A OF THE TOWN COUNCIL
MEMO.
Ordinance No. 22, Series of 2009 1
PEC- ATTACHMENT B
Colorado Amendment 20
Ballot Title: An amendment to the Colorado Constitution authorizing the medical use of
marijuana for persons suffering from debilitating medical conditions, and, in connection
therewith, establishing an affirmative defense to Colorado criminal laws for patients and their
primary care-givers relating to the medical use of marijuana; establishing exceptions to
Colorado criminal laws for patients and primary care-givers in lawful possession of a registry
identification card for medical marijuana use and for physicians who advise patients or provide
them with written documentation as to such medical marijuana use; defining "debilitating
medical condition" and authorizing the state health agency to approve other medical conditions
or treatments as debilitating medical conditions; requiring preservation of seized property
interests that had been possessed, owned, or used in connection with a claimed medical use of
marijuana and limiting forfeiture of such interests; establishing and maintaining a confidential
state registry of patients receiving an identification card for the medical use of marijuana and
defining eligibility for receipt of such a card and placement on the registry; restricting access to
information in the registry; establishing procedures for issuance of an identification card;
authorizing fees to cover administrative costs associated with the registry; specifying the form
and amount of marijuana a patient may possess and restrictions on its use; setting forth
additional requirements for the medical use of marijuana by patients less than eighteen years
old; directing enactment of implementing legislation and criminal penalties for certain offenses;
requiring the state health agency designated by the governor to make application forms
available to residents of Colorado for inclusion on the registry; limiting a health insurer's liability
on claims relating to the medical use of marijuana; and providing that no employer must
accommodate medical use of marijuana in the workplace.
Text of Constitutional Amendment:
Be it Enacted by the People of the State of Colorado:
AN AMENDMENT TO THE CONSTITUTION OF THE STATE OF COLORADO, AMENDING
ARTICLE XVIII, ADDING A NEW SECTION TO READ:
Section 14. Medical use of marijuana for persons suffering from debilitating medical conditions.
(1) As used in this section, these terms are defined as follows.
(a) "Debilitating medical condition" means:
(1) Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired
immune deficiency syndrome, or treatment for such conditions;
(II) A chronic or debilitating disease or medical condition, or treatment for such
conditions, which produces, for a specific patient, one or more of the following, and for
which, in the professional opinion of the patient's physician, such condition or conditions
reasonably may be alleviated by the medical use of marijuana: cachexia; severe pain;
severe nausea; seizures, including those that are characteristic of epilepsy; or persistent
muscle spasms, including those that are characteristic of multiple sclerosis; or
(III) Any other medical condition, or treatment for such condition, approved by the state
health agency, pursuant to its rule making authority or its approval of any petition
submitted by a patient or physician as provided in this section.
(b) "Medical use" means the acquisition, possession, production, use, or transportation of
marijuana or paraphernalia related to the administration of such marijuana to address the
symptoms or effects of a patient's debilitating medical condition, which may be authorized only
after a diagnosis of the patient's debilitating medical condition by a physician or physicians, as
provided by this section.
(c) "Parent" means a custodial mother or father of a patient under the age of eighteen years,
any person having custody of a patient under the age of eighteen years, or any person serving
as a legal guardian for a patient under the age of eighteen years.
(d) "Patient" means a person who has a debilitating medical condition.
(e) "Physician" means a doctor of medicine who maintains, in good standing, a license to
practice medicine issued by the state of Colorado.
(f) "Primary care-giver" means a person, other than the patient and the patient's physician, who
is eighteen years of age or older and has significant responsibility for managing the well-being
of a patient who has a debilitating medical condition.
(g) "Registry identification card" means that document, issued by the state health agency, which
identifies a patient authorized to engage in the medical use of marijuana and such patient's
primary care-giver, if any has been designated.
(h) "State health agency" means that public health related entity of state government designated
by the governor to establish and maintain a confidential registry of patients authorized to
engage in the medical use of marijuana and enact rules to administer this program.
(i) "Usable form of marijuana" means the seeds, leaves, buds, and flowers of the plant (genus)
cannabis, and any mixture or preparation thereof, which are appropriate for medical use as
provided in this section, but excludes the plant's stalks, stems, and roots.
Q) 'Written documentation" means a statement signed by a patient's physician or copies of the
patient's pertinent medical records.
(2)
(a) Except as otherwise provided in subsections (5), (6), and (8) of this section, a patient or
primary care-giver charged with a violation of the state's criminal laws related to the patient's
medical use of marijuana will be deemed to have established an affirmative defense to such
allegation where:
(1) The patient was previously diagnosed by a physician as having a debilitating medical
condition;
(11) The patient was advised by his or her physician, in the context of a bona fide
physician-patient relationship, that the patient might benefit from the medical use of
marijuana in connection with a debilitating medical condition; and
(III) The patient and his or her primary care-giver were collectively in possession of
amounts of marijuana only as permitted under this section. This affirmative defense shall
not exclude the assertion of any other defense where a patient or primary care-giver is
charged with a violation of state law related to the patient's medical use of marijuana.
2
(b) Effective June 1, 1999, it shall be an exception from the state's criminal laws for any patient
or primary care-giver in lawful possession of a registry identification card to engage or assist in
the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this
section.
(c) It shall be an exception from the state's criminal laws for any physician to:
(1) Advise a patient whom the physician has diagnosed as having a debilitating medical
condition, about the risks and benefits of medical use of marijuana or that he or she
might benefit from the medical use of marijuana, provided that such advice is based
upon the physician's contemporaneous assessment of the patient's medical history and
current medical condition and a bona fide physician-patient relationship; or
(II) Provide a patient with written documentation, based upon the physician's
contemporaneous assessment of the patient's medical history and current medical
condition and a bona fide physician-patient relationship, stating that the patient has a
debilitating medical condition and might benefit from the medical use of marijuana. No
physician shall be denied any rights or privileges for the acts authorized by this
subsection.
(d) Notwithstanding the foregoing provisions, n
giver, shall be entitled to the protection of this
manufacture, production, use, sale, distribution,
any use other than medical use.
person, including a patient or primary care-
section for his or her acquisition, possession,
dispensing, or transportation of marijuana for
(e) Any property interest that is possessed, owned, or used in connection with the medical use
of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or
destroyed while in the possession of state or local law enforcement officials where such
property has been seized in connection with the claimed medical use of marijuana. Any such
property interest shall not be forfeited under any provision of state law providing for the forfeiture
of property other than as a sentence imposed after conviction of a criminal offense or entry of a
plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law
enforcement officials from a patient or primary care-giver in connection with the claimed medical
use of marijuana shall be returned immediately upon the determination of the district attorney or
his or her designee that the patient or primary care-giver is entitled to the protection contained in
this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of
charges, or acquittal.
(3) The state health agency shall create and maintain a confidential registry of patients who
have applied for and are entitled to receive a registry identification card according to the criteria
set forth in this subsection, effective June 1, 1999.
(a) No person shall be permitted to gain access to any information about patients in the state
health agency's confidential registry, or any information otherwise maintained by the state
health agency about physicians and primary care-givers, except for authorized employees of the
state health agency in the course of their official duties and authorized employees of state or
local law enforcement agencies which have stopped or arrested a person who claims to be
engaged in the medical use of marijuana and in possession of a registry identification card or its
functional equivalent, pursuant to paragraph (e) of this subsection (3). Authorized employees of
state or local law enforcement agencies shall be granted access to the information contained
within the state health agency's confidential registry only for the purpose of verifying that an
individual who has presented a registry identification card to a state or local law enforcement
3
official is lawfully in possession of such card.
(b) In order to be placed on the state's confidential registry for the medical use of marijuana, a
patient must reside in Colorado and submit the completed application form adopted by the state
health agency, including the following information, to the state health agency:
(1) The original or a copy of written documentation stating that the patient has been
diagnosed with a debilitating medical condition and the physician's conclusion that the
patient might benefit from the medical use of marijuana;
(11) The name, address, date of birth, and social security number of the patient;
(111) The name, address, and telephone number of the patient's physician; and
(IV) The name and address of the patient's primary care-giver, if one is designated at the
time of application.
(c) Within thirty days of receiving the information referred to in subparagraphs (3)(b)(I)-(IV), the
state health agency shall verify medical information contained in the patient's written
documentation. The agency shall notify the applicant that his or her application for a registry
identification card has been denied if the agency's review of such documentation discloses that:
the information required pursuant to paragraph (3)(b) of this section has not been provided or
has been falsified; the documentation fails to state that the patient has a debilitating medical
condition specified in this section or by state health agency rule; or the physician does not have
a license to practice medicine issued by the state of Colorado. Otherwise, not more than five
days after verifying such information, the state health agency shall issue one serially numbered
registry identification card to the patient, stating:
(1) The patient's name, address, date of birth, and social security number;
(II) That the patient's name has been certified to the state health agency as a person
who has a debilitating medical condition, whereby the patient may address such
condition with the medical use of marijuana;
(III) The date of issuance of the registry identification card and the date of expiration of
such card, which shall be one year from the date of issuance; and
(IV) The name and address of the patient's primary care-giver, if any is designated at the
time of application.
(d) Except for patients applying pursuant to subsection (6) of this section, where the state health
agency, within thirty-five days of receipt of an application, fails to issue a registry identification
card or fails to issue verbal or written notice of denial of such application, the patient's
application for such card will be deemed to have been approved. Receipt shall be deemed to
have occurred upon delivery to the state health agency, or deposit in the United States mails.
Notwithstanding the foregoing, no application shall be deemed received prior to June 1, 1999. A
patient who is questioned by any state or local law enforcement official about his or her medical
use of marijuana shall provide a copy of the application submitted to the state health agency,
including the written documentation and proof of the date of mailing or other transmission of the
written documentation for delivery to the state health agency, which shall be accorded the same
legal effect as a registry identification card, until such time as the patient receives notice that the
application has been denied.
4
(e) A patient whose application has been denied by the state health agency may not reapply
during the six months following the date of the denial and may not use an application for a
registry identification card as provided in paragraph (3)(d) of this section. The denial of a registry
identification card shall be considered a final agency action. Only the patient whose application
has been denied shall have standing to contest the agency action.
(f) When there has been a change in the name, address, physician, or primary care-giver of
patient who has qualified for a registry identification card, that patient must notify the state
health agency of any such change within ten days. A patient who has not designated a primary
care-giver at the time of application to the state health agency may do so in writing at any time
during the effective period of the registry identification card, and the primary care-giver may act
in this capacity after such designation. To maintain an effective registry identification card, a
patient must annually resubmit, at least thirty days prior to the expiration date stated on the
registry identification card, updated written documentation to the state health agency, as well as
the name and address of the patient's primary care-giver, if any is designated at such time.
(g) Authorized employees of state or local law enforcement agencies shall immediately notify
the state health agency when any person in possession of a registry identification card has been
determined by a court of law to have willfully violated the provisions of this section or its
implementing legislation, or has pled guilty to such offense.
(h) A patient who no longer has a debilitating medical condition shall return his or her registry
identification card to the state health agency within twenty-four hours of receiving such
diagnosis by his or her physician.
(i) The state health agency may determine and levy reasonable fees to pay for any direct or
indirect administrative costs associated with its role in this program.
(4)
(a) A patient may engage in the medical use of marijuana, with no more marijuana than is
medically necessary to address a debilitating medical condition. A patient's medical use of
marijuana, within the following limits, is lawful:
(1) No more than two ounces of a usable form of marijuana; and
(II) No more than six marijuana plants, with three or fewer being mature, flowering plants
that are producing a usable form of marijuana.
(b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-
giver may raise as an affirmative defense to charges of violation of state law that such greater
amounts were medically necessary to address the patient's debilitating medical condition.
(5)
(a) No patient shall:
(1) Engage in the medical use of marijuana in a way that endangers the health or well-
being of any person; or
(II) Engage in the medical use of marijuana in plain view of, or in a place open to, the
general public.
(b) In addition to any other penalties provided by law, the state health agency shall revoke for a
5
period of one year the registry identification card of any patient found to have willfully violated
the provisions of this section or the implementing legislation adopted by the general assembly.
(6) Notwithstanding paragraphs (2)(a) and (3)(d) of this section, no patient under eighteen years
of age shall engage in the medical use of marijuana unless:
(a) Two physicians have diagnosed the patient as having a debilitating medical condition;
(b) One of the physicians referred to in paragraph (6)(a) has explained the possible risks and
benefits of medical use of marijuana to the patient and each of the patient's parents residing in
Colorado;
(c) The physicians referred to in paragraph (6)(b) has provided the patient with the written
documentation, specified in subparagraph (3)(b)(1);
(d) Each of the patient's parents residing in Colorado consent in writing to the state health
agency to permit the patient to engage in the medical use of marijuana;
(e) A parent residing in Colorado consents in writing to serve as a patient's primary care-giver;
(f) A parent serving as a primary care-giver completes and submits an application for a registry
identification card as provided in subparagraph (3)(b) of this section and the written consents
referred to in paragraph (6)(d) to the state health agency;
(g) The state health agency approves the patient's application and transmits the patient's
registry identification card to the parent designated as a primary care-giver;
(h) The patient and primary care-giver collectively possess amounts of marijuana no greater
than those specified in subparagraph (4)(a)(1) and (11); and
(i) The primary care-giver controls the acquisition of such marijuana and the dosage and
frequency of its use by
the patient.
(7) Not later than March 1, 1999, the governor shall designate, by executive order, the state
health agency as defined in paragraph (1)(g) of this section.
(8) Not later than April 30, 1999, the General Assembly shall define such terms and enact such
legislation as may be necessary for implementation of this section, as well as determine and
enact
(a) Fraudulent representation of a medical condition by a patient to a physician, state health
agency, or state or local law enforcement official for the purpose of falsely obtaining a registry
identification card or avoiding arrest and prosecution;
(b) Fraudulent use or theft of any person's registry identification card to acquire, possess,
produce, use, sell, distribute, or transport marijuana, including but not limited to cards that are
required to be returned where patients are no longer diagnosed as having a debilitating medical
condition;
(c) Fraudulent production or counterfeiting of, or tampering with, one or more registry
identification cards; or
(d) Breach of confidentiality of information provided to or by the state health agency.
(9) Not later than June 1, 1999, the state health agency shall develop and make available to
residents of Colorado an application form for persons seeking to be listed on the confidential
registry of patients. By such date, the state health agency shall also enact rules of
administration, including but not limited to rules governing the establishment and confidentiality
of the registry, the verification of medical information, the issuance and form of registry
identification cards, communications with law enforcement officials about registry identification
cards that have been suspended where a patient is no longer diagnosed as having a debilitating
medical condition, and the manner in which the agency may consider adding debilitating
medical conditions to the list provided in this section. Beginning June 1, 1999, the state health
agency shall accept physician or patient initiated petitions to add debilitating medical conditions
to the list provided in this section and, after such hearing as the state health agency deems
appropriate, shall approve or deny such petitions within one hundred eighty days of submission.
The decision to approve or deny a petition shall be considered a final agency action.
(10)
(a) No governmental, private, or any other health insurance provider shall be required to be
liable for any claim for reimbursement for the medical use of marijuana.
(b) Nothing in this section shall require any employer to accommodate the medical use of
marijuana in any work place.
(11) Unless otherwise provided by this section, all provisions of this section shall become
effective upon official declaration of the vote hereon by proclamation of the governor, pursuant
to article V, section (1)(4), and shall apply to acts or offenses committed on or after that date.
7
ATTACHMENT C OMITTED FOR TOWN COUNCIL MEMO ATTACHMENT
UPDATED MAPS INCLUDED IN ATTACHMENT D OF TOWN COUNCIL MEMO.
PEC-Attachment D
Vail law: Colorado's medical marijuana laws
Use of medical marijuana in Vail and Colorado is narrowly defined
By Rohn Robbins
Vail, CO Colorado
Printed in the Vail Daily on September 29, 2009
VAIL, Colorado - Pot dispensaries have come to Colorado's Vail Valley. Some may argue
these dispensaries make it an even happier place. But that misses the point. The pot in those
dispensaries, while just as capable of happy-making as any other pot, is for medical purposes
only. Got that? No sniggering allowed.
While debate may yet rage over the medicinal benefits of marijuana, the fact remains that
medicinal use of marijuana is perfectly legal in Colorado. Its use, however, is narrowly confined.
Treating a `debilitating condition'
Following ratification by the voters in November of 2000, Colorado's medical marijuana law was
adopted Dec. 28, 2000 and is found in Article 18, Section 14 of the Colorado State Constitution.
The law's formal title is "Medical use of marijuana for person suffering from debilitating medical
conditions." The title speaks volumes about the limitations of its legal use.
"Debilitating condition" is limited to cancer, glaucoma, AIDS/HIV-positive, or other chronic
diseases or medical conditions for which the medicinal use of marijuana produces alleviation of
wasting, pain, nausea, seizures, or persistent muscle spasms. The patient's physician must
certify that the patient's symptoms may "reasonably" be ameliorated by the use of marijuana.
"Medical use" is also specifically defined and contemplates that marijuana may be acquired,
produced, possessed and used only in relation to a patient's illness after diagnosis by the
patient's physician. The physician must be in good standing and licensed to practice medicine in
Colorado. The relationship between the doctor and the patient must be genuine.
Possession and use of marijuana for medical purposes is an exception from the state's criminal
laws, and unless all criteria of its use for medical purposes are met, the patient and/or the
patient's primary care-giver may be charged with one or more crimes.
Neither the doctor prescribing medical marijuana nor the patient (and/or primary care-giver) will
be exempt from criminal prosecution if the acquisition, possession, manufacture, use,
distribution or sale is for any reason other than legitimate medical use.
Who qualifies?
The state health agency maintains a confidential registry of patients who have applied for, and
are entitled to receive, a registry identification card. Criteria to qualify for the card include
residency within the Colorado and completion of the form adopted by the state. The form
requires identifying information about both the patient and physician.
State officials must verify the medical information within 30 days of receiving the form. The
application may be denied if the information has not been provided or is falsified; the
documentation fails to state that the patient has a debilitating medical condition; the condition
does not qualify; or the physician does not have a valid license to practice in the state. If the
patient qualifies, the state has five days to issue a registry card.
1
Besides identifying information about the patient, and certification by the state health agency
that the person qualifies for the card, the card contains both the date of issuance and its
expiration - one year from the date of issue. A patient who is questioned by law enforcement
about his use of marijuana must provide his card.
A patient may not reapply for at least six months if his or her application is denied. If the agency
fails to either deny the application or issue a registry card within 35 days after the application is
submitted, the application is deemed to have been approved. If questioned by law enforcement,
the patient must provide a copy of his application, including the written documentation and proof
of the date of mailing or other delivery to the state health agency. In these circumstances, the
application will be accorded the same legal effect as a registry identification card, until, at least,
the patient receives notice that the application has been denied.
An approved patient may use marijuana, but only in a "medically necessary" amount. That
means he may possess no more than two ounces in useable form and have no more than six
marijuana plants with three or fewer being mature, flowering plants. The patient may not use
marijuana openly or in public.
Any person who commits fraud in representing a medical condition to a physician, the
department of health, or a state or local law enforcement official for the purpose of falsely
obtaining a marijuana registry card, or for the purpose of avoiding arrest and prosecution for a
marijuana-related offense, commits a class 1 misdemeanor. Similarly, the fraudulent production,
counterfeiting or tampering with a registry card is a class 1 misdemeanor.
While perhaps controversial, there are those who sing the praises and medicinal virtues of
marijuana. In any event, those who seek medical marijuana must ensure that they comply with
the procedures and conditions of its possession and its use.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who
practices in the Vail Valley.
2
ATTACHMENT C
EXCERPT FROM PLANNING AND ENVIRONMENTAL COMMISSION RESULTS
October 12, 2009, 1:00pm
TOWN COUNCIL CHAMBERS / PUBLIC WELCOME
75 S. Frontage Road - Vail, Colorado, 81657
MEMBERS PRESENT MEMBERS ABSENT
Michael Kurz None
Bill Pierce
Rollie Kjesbo
Dave Viele
Scott Lindall
Susie Tjossem
Sarah Paladino
1. A request for a final recommendation to the Vail Town Council on prescribed
regulation amendments, pursuant to Section 12-3-7, Amendment, Vail Town Code for
amendments to Title 12, Zoning Regulations, Vail Town Code, to allow for medical
marijuana dispensaries as a land use in specific zone districts, and setting for details in
regard thereto. (PEC090030)
Applicant: Town of Vail
Planner: Rachel Friede
ACTION: Recommendation of approval
MOTION: Kjesbo SECOND: Kurz VOTE: 7-0-0
CONDITIONS:
1. Add medical marijuana dispensaries as a conditional use to the General Use (GU)
District.
2. Change "50 feet" to "100 feet" in the following use specific criteria: "Medical Marijuana
Dispensaries shall be located a minimum of fifty feet from any school or educational facility
serving persons under eighteen (18) years of age or any other medical marijuana dispensary."
3. Change "main entrances" to "all entrances" in the following use specific criteria: "Medical
marijuana dispensaries shall install security surveillance cameras to monitor the main entrance
and the exterior of the premises to discourage and to facilitate the reporting of criminal acts as
well as nuisance activities."
4. Change "at medical marijuana dispensaries" to "on-site" in the following use specific
criteria: "Consumption of medical marijuana in any form is prohibited at medical marijuana
dispensaries."
5. Change "sale" to "distribution" in the following use specific criteria: "Growing and/or the
sale of live marijuana plants is prohibited at medical marijuana dispensaries."
6. Change "marijuana paraphernalia" to "drug paraphernalia" in the following use specific
criteria: "Any signage that is visible to the public from roadways, pedestrian walkways or from
other public areas shall not contain graphics of marijuana or marijuana paraphernalia."
Rachel Friede gave a presentation on the proposed addition of medical marijuana dispensaries
(MMDs) as a new land use per the staff memorandum. Ms. Friede covered all the proposed
amendments to allow for MMDs in certain zone districts.
Jim Lamont, Vail Homeowners Association, asked whether the Town is obligated to allow
MMDs in the Town of Vail. Rachel Friede responded that the Town is not obligated to allow this
use. Mr. Lamont asked what other similar communities have enacted ordinances to permit
MMDs. Ms. Friede responded that similar regulations have been passed in Breckenridge,
Glenwood Springs, Commerce City and Northglenn. She also noted that Aspen has chosen not
to regulate MMDs but is allowing them as a pharmacy. Mr. Lamont, stated that the Vail
Homeowners Association has not official taken a stance on this proposed land use.
Commissioner Kurz asked for clarification regarding the exclusion of the land use for certain
zone districts.
Commissioner Tjossem inquired as to why the hospital was not included. Ms. Friede responded
that the hospital is in the General Use District, which is mostly town-owned properties. Ms.
Friede also noted that this use has not been established in any hospitals in Colorado.
Commissioner Kjesbo stated that he too wondered why the hospital was not included.
Commissioner Viele had nothing further to add.
Commissioner Lindall inquired as to the benefits of adding this land use. Ms. Friede stated that
there is potential sales tax revenue from this use, and it will also expand the number and types
of businesses within the Town.
Commissioner Kurz said he was concerned that the overall number of MMDs within a close
distance of each other could have a negative impact on surrounding land uses. He suggested
that a maximum number be allowed in each zone district or in the Town.
Ms. Friede suggested that a conversation with the Town Attorney may be warranted to address
this concern. She suggested that it might be able to be handled through a limitation on the
number of issued business licenses. Commissioner Pierce suggested that this concern could
be addressed with each conditional use permit application.
Commissioner Kjesbo said he believes that the land use will be fairly self-regulating, as the
market will only require a certain amount of MMDs.
Commissioner Pierce suggested that the General Use District be added to allow the hospital to
have MMDs.
Commissioner Kurz inquired as to the possibility of increasing control over the naming of
business so as to not deviate from the medical intent of the business. Ms. Friede responded
that while the name of the business might not be controllable due to the First Amendment
freedom of speech, the depiction of marijuana and drug paraphernalia on signage would be
prohibited.
Commissioner Pierce asked the other Commissioners if they would want to increase the
distance between MMDs and schools.
Commissioner Palladino stated that security cameras should be required for all entrances, not
just main entrances.
A motion was made for a recommendation of approval with modifications to include the GU
District, increase the required distance between MMDs, other MMDs and schools to 100 ft, and
to require cameras at all entrances, as well as some changes to terminology.
2
ATTACHMENT A
ORDINANCE NO. 22
SERIES OF 2009
AN ORDINANCE AMENDING TITLE 12, ZONING REGULATIONS, VAIL TOWN CODE, TO
ALLOW MEDICAL MARIJUANA DISPENSARIES AS A CONDITIONAL USE IN THE
COMMERCIAL CORE III, ARTERIAL BUSINESS, GENERAL USE AND COMMERCIAL
SERVICE CENTER DISTRICTS, AND SETTING FORTH DETAILS IN REGARD THERETO.
WHEREAS, the voters of the State of Colorado affirmed the medical use of marijuana by
approving Amendment 20 in November of 2000; and,
WHEREAS, the intent of Amendment 20 was to enable persons who are in medical
need of marijuana to be able to obtain and use it without fear of criminal prosecution; and,
WHEREAS, the State of Colorado has not adopted regulations for medical marijuana
dispensaries, instead deferring to local jurisdictions to adopt regulations; and,
WHEREAS, the existing Town of Vail Zoning Regulations do not specifically address
medical marijuana dispensaries, which are a hybrid of retail, medical office and pharmacy that
caters to medical marijuana patients that are registered with the State of Colorado; and,
WHEREAS, the Town of Vail needs to address regulation of medical marijuana
dispensaries in order to ensure compliance with the Town's comprehensive plans, ensure
harmony among uses, and to protect the public health, safety and welfare; and,
WHEREAS, on October 12, 2009, the Planning and Environmental Commission
unanimously forwarded a recommendation of approval, with modifications, to the Vail Town
Council for this ordinance; and
WHEREAS, the Vail Town Council finds that the prescribed regulations amendments are
consistent with the applicable elements of the adopted goals, objectives and policies outlined in
the Vail Comprehensive Plan and is compatible with the development objectives of the Town;
and
WHEREAS, the Vail Town Council finds that the prescribed regulations amendments
further the general and specific purposes of the Zoning Regulations outlined in Section 12-1-2,
Purpose, Vail Town Code; and
Ordinance No. 22, Series of 2009 1
i
WHEREAS, the Vail Town Council finds that the prescribed regulations amendments
promote the health, safety, morals, and general welfare of the Town and promote the
coordinated and harmonious development of the Town in a manner that conserves and
enhances its natural environment and its established character as a resort and residential
community of the highest quality.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
VAIL, COLORADO, THAT:
Section 1. Purpose: The purpose of this ordinance is to establish regulations for
medical marijuana dispensaries, and allow them as a conditional use in the appropriate
commercial zone districts.
Section 2. Section 12-2-2, Vail Town Code is hereby amended as follows:
Section 12-2-2: Definitions of Words and Terms:
Medical Marijuana Dispensary: Any business that sells, distributes,
transmits, gives, dispenses or otherwise provides medical marijuana,
in accordance with the laws of the State of Colorado.
Section 3. Section 12-7D-2, Vail Town Code is hereby amended as follows:
Section 12-7D-2: CONDITIONAL USES:
The following conditional uses shall be permitted in the commercial core 3
district, subject to issuance of a conditional use permit in accord with the
provisions of chapter 16 of this title:
Any use permitted by section 12-7D-1 of this article which is not conducted
entirely within a building.
Bed and breakfasts, as further regulated by section 12-14-18 of this title.
Brewpubs.
Child daycare center.
Commercial laundry and cleaning services, bulk plant.
Commercial storage.
Dog kennels.
Drive-up facilities.
Major arcades.
Massage parlors.
Medical Marijuana Dispensaries.
Outside car wash.
Pet shops.
Public buildings, grounds, and facilities.
Public park and recreation facilities.
Public utility and public service uses.
Radio and television signal relay transmission facilities.
Ordinance No. 22, Series of 2009 2
Theaters, meeting rooms, and convention facilities.
Transportation businesses.
Section 4. Section 12-7E-4, Vail Town Code is hereby amended as follows:
Section 12-7E-4: CONDITIONAL USES:
The following conditional uses shall be permitted in the CSC district, subject
to issuance of a conditional use permit in accordance with the provisions
of chapter 16 of this title:
Any use permitted by section 12-7E-3 of this article, which is not conducted
entirely within a building.
Bed and breakfasts, as further regulated by section 12-14-18 of this title.
Bowling alley.
Brewpubs.
Child daycare centers.
Commercial laundry and cleaning services.
Communications antennas and appurtenant equipment.
Dog kennels.
Major arcades.
Medical Marijuana Dispensaries.
Multiple-family residential dwellings and lodges.
Outdoor operation of the accessory uses as set forth in section 12-7E-5 of
this article.
Private clubs.
Private parking structures.
Private unstructured parking.
Public buildings, grounds and facilities.
Public park and recreation facilities.
Public utility and public service uses.
Ski lifts and tows.
Theaters, meeting rooms, and convention facilities.
Section 5. Section 12-7F-4, Vail Town Code is hereby amended as follows:
Section 12-7F-4: CONDITIONAL USES:
A. Enumerated: The following conditional uses shall be permitted in the
arterial business district, subject to the issuance of a conditional use permit
in accordance with the provisions of chapter 16 of this title:
Any use permitted by section 12-7F-3 of this article, which is not conducted
entirely within a building.
Bed and breakfasts, as further provided by section 12-14-18 of this title.
Brewpubs.
Child daycare centers.
Communications antennas and appurtenant equipment.
Medical Marijuana Dispensaries.
Microbreweries.
Private unstructured parking.
Public buildings, grounds and facilities.
Public park and recreation facilities.
Public utility and public service uses, including screened outside storage.
Service yards.
Transportation businesses.
Ordinance No. 22, Series of 2009 3
Section 7. Section 12-16-7, Vail Town Code is hereby amended as follows:
Section 12-16-7: USE SPECIFIC CRITERIA AND STANDARDS:
The following criteria and standards shall be applicable to the uses listed
below in consideration of a conditional use permit. These criteria and
standards shall be in addition to the criteria and findings required by section
12-16-6 of this chapter.
A. Uses And Criteria:
17. Medical Marijuana Dispensaries:
A. Location: Medical Marijuana Dispensaries shall be located
a minimum of one hundred (100) feet from any school or
educational facility serving persons under eighteen (18)
years of age or any other medical marijuana dispensary.
The distance shall be measured in a straight line, without
regard to intervening structures, from the closest exterior
structural wall of each business.
B. On-Site Restrictions:
a. Medical marijuana dispensaries shall conduct all
business activities indoors. Outdoor display of goods
is prohibited.
Ordinance No. 22, Series of 2009 4
Public and private parks and active outdoor recreation areas, facilities anc
i
b. Consumption of medical marijuana in any form is
prohibited on site.
c. Growing and/or the distribution of live marijuana plants
is prohibited at medical marijuana dispensaries.
d. Processing of medical marijuana into any derivative
product, including but not limited to cooking, baking
and purification, is prohibited on site.
e. Medical marijuana or associated products shall not be
visible from outside of the business.
C. Signs:
a. Business identification signs shall be limited to one (1)
sign with a maximum area of up to six (6) square feet.
b. Medical Marijuana Dispensaries shall not cover any
portion of windows of the business, except with window
signs, as further regulated by Title 11, Sign Regulations
c. Signage, decoration and other print materials that are
visible to the public from roadways, pedestrian
walkways, common areas or from other public areas
shall not contain graphics of marijuana or drug
D. Security.
a. Medical marijuana dispensaries shall install security
surveillance cameras to monitor all entrances and the
exterior of the premises to discourage and to facilitate
the reporting of criminal acts as well as nuisance
activities. Security video shall be preserved for at least
72 hours.
b. Medical marijuana dispensaries shall install
professionally monitored alarm systems, which shall be
maintained in good working condition.
Section 8. If any part, section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid, such decision shall not effect the validity of the
remaining portions of this ordinance; and the Town Council hereby declares it would have
passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof,
regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or
phrases be declared invalid.
Section 9. The Town Council hereby finds, determines and declares that this
ordinance is necessary and proper for the health, safety and welfare of the Town of Vail and the
inhabitants thereof.
Section 10. The amendment of any provision of the Town Code as provided in this
ordinance shall not affect any right which has accrued, any duty imposed, any violation that
occurred prior to the effective date hereof, any prosecution commenced, nor any other action or
Ordinance No. 22, Series of 2009 5
i 1
)l
proceeding as commenced under or by virtue of the provision amended. The amendment of
any provision hereby shall not revive any provision or any ordinance previously repealed or
superseded unless expressly stated herein.
Section 11. All bylaws, orders, resolutions and ordinances, or parts thereof,
inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall
not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore
repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED
PUBLISHED ONCE IN FULL ON FIRST READING this 20th day of October, 2009, and a public
hearing for second reading of this Ordinance set for the 3`d day of November 2009, at 6:00 P.M.
in the Council Chambers of the Vail Municipal Building, Vail, Colorado.
ATTEST:
Lorelei Donaldson, Town Clerk
Richard D. Cleveland, Mayor
Ordinance No. 22, Series of 2009 6
ATTACHMENT D: Maps of Districts in Consideration in Relation to
Schools
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MEMORANDUM
TO: George Ruther
FROM: Rachel Friede
DATE: October 19, 2009
SUBJECT: Comparison of MMD regulations
Communities that permit MMDs as retail or pharmacy, with no additional regulations:
• Aspen
• Boulder
• Denver
• Salida
• Colorado Springs
• Glenwood Springs
Communities that have explicitly banned MMDs:
• Gypsum
Communities that have regulated MMDs as a distinct land use with use specific criteria:
• Breckenridge
• Northglenn
• Commerce City
Comparison of Use Specific Criteria:
Municipali
Location
Si na a
Security
Business Requirements
Commerce
No MMDs within
Any signage or
Required
• All business activities
City
1000 ft of:
advertisement
security
indoors
• any public or
visible to the
cameras at
• All windows must be
residential districts
public cannot
main entrance
covered
• mobile homes
depict medical
and exterior of
• dwelling unit
marijuana
building
• church
Security tapes
• school
must be kept
• daycare
for 72 hours
• rehab
Monitored
• group home
burglary alarm
• public building
system and
• public park
required
• other MMDs
• halfway house
• correctional facility
Northglenn
No MMDs within:
Any signage
Required
• Hours of operation: 9am-
• 200 ft of dwelling
cannot contain
security
7pm
unit
the word
cameras at
. No on-site consumption/
• 500 ft of daycare
"marijuana" or
main entrance
smoking
or school
depict a
and exterior of
9 Paraphernalia only sold
• 500 ft of
recreational
facility
• 500 ft of blighted
areas
• 1000 ft of
correctional facility
• 1000 ft of another
MMD
• any building with a
dwelling unit
marijuana leaf or
plant
Required to have
signs inside
stating laws
building
• Security tapes
must be kept
for 72 hours
• Must have
safe on site for
storage
• Must have
window that
police can
look into
to patients
• No growing or processing
on site
• No sale or consumption
of alcohol
• No one under 18 allowed
anywhere in MMD
. MMDs must keep records
. No more than 2 oz per
patient or 6 plants (per
state law)
• Must pay taxes
• Obtain business license
Breckenridge
No MMDs within:
Any signage
. Required
• Employees must pass
• 500 ft of school
cannot contain
security
background check
• 500 ft of halfway
the word
cameras at
. Delivery permitted
house
"marijuana" or
main entrance
• Hours of operation: 9am-
• adjacent to
depict a
and exterior of
7pm
residential
marijuana leaf or
building
. No on-site consumption/
• building with
plant
• Security tapes
smoking
dwelling unit
must be kept
• Paraphernalia only sold
• ground floor of
Required to have
for 72 hours
to patients
downtown
signs inside
. Must have
. No growing or processing
stating laws
safe on site for
on site
storage
• No sale or consumption
• Well lit exterior
of alcohol
lighting
• MMDs must keep records
required
• No more than 2 oz per
patient or 6 plants (per
state law)
• Must pay taxes
• Obtain business license
Vail
No MMDs within 100
Signage limited
Required
• No growing or processing
ft of:
to 6 sq ft
security
• No on-site consumption
• Schools
Window signage
cameras at all
• All business activity
• Other MMDs
must comply
entrances
indoors
Signage cannot
Security tapes
No marijuana or
contain
must be kept
paraphernalia visible from
depictions of
for 72 hours
outside
marijuana or
Monitored
Must have business
drug
burglary alarm
license
paraphernalia
system
Must pay taxes
• By default, no sale of
alcohol (no liquor license)
TOWN OF VAIL
Memorandum
To:
Vail Town Council
From:
,-5Dwight Henninger, Chief of Police
Date:
October 16, 2009
Subject:
Medical Marijuana Dispensaries
Department of Police
On Tuesday, October 20th, you will be asked to approve the land use regulation of Medical
Marijuana Dispensaries (MMD) in Vail. I strongly urge you to deny Ordinance No.
22, Series of 2009.
Vail prides itself on being a family friendly resort and community, and allowing MMD in
Vail is in direct conflict with over 40 years of work at being the premier mountain resort
community. The children of Vail already struggle to identify appropriate adult conduct
when seeing our guests acting out on vacation. Approving the sale of "legal" marijuana in
Vail may further cloud their view of suitable behavior as they approach adulthood.
Medical marijuana issues are going to be addressed in the State legislature in 201o and
hopefully they will clear up a number of the loopholes that have made a sham of marijuana
for "debilitating medical conditions'." Currently there are over 11,00o approved medical
marijuana registry citizens in the State, and of the over 13,00o applications received to
date, only 29 have been denied by the Colorado Department of Public Health and
Environment. The number of applications has jumped from 9o a month in 2008, to over
boo a month in 2009. The average applicant is a male, 41 years of age, complaining of
severe pain mainly in the stomach and back. Over 80o doctors have approved at least one
recommendation for medical marijuana. The vast majority have been issued by 20 specific
doctors. You can open today's Vail Daily and see the ads for the MMD's. You can even
have an appointment over the phone to get this recommendation from a "doctor" without
being seen in person.
I
California is a few years ahead of Colorado in the area of MMD and many communities are
experiencing numerous problems of crime and disorder in and about these businesses.
Common problems include: robberies of the businesses and customers due to the large
cash transactions; traffic at all hours; burglaries; illegal resale and drug sales in the parking
lots; and felons working in the MMD's. Preliminarily they are also seeing an increase in
driving under the influence of marijuana related accidents.
1. Colorado Amendment 20, An Amendment to the Constitution of the State of Colorado, Amending Article XVIII,
Section 14, page 1
I am aware of 8 MMD's in Eagle County, the closest being in Eagle-Vail, on an existing bus
route. A person in true need of medical marijuana can obtain the product within 3 miles of
the Town of Vail.
Therefore, I urge you to deny the land use addition of MMD's Town wide to our Code in
order to preserve the family friendly resort and community we all love.
If you are compelled to approve the addition, please exclude MMD's for the Commercial
Service Center Zone District Properties (US Bank, Gateway and Solaris) in the draft
ordinance, and consider increasing the distances from schools to 1,ooo feet to be
consistent with the Colorado Uniform Controlled Substances Act of 1992, section 18-18-
407(2)(a), which increases penalties for drug dealing within 1,ooo feet of a school.
Subject: Medical Pot!
George,
We are very curious to know the rationale behind the issue of distribution for medical marijuana in Vail. Was research or
documentation done that indicates in a town of less than 4500 people there are so many that need this form of pain
management?
Your Press Release was dated 10/16 for a 10/20 Council Meeting.
Not much advance notice.
Gilda and Werner Kaplan
r
Sensible
W_ - 90 ~arf_
v orking for an
effective drug policy
Dear Legislator or City Official,
If you have not already, you may soon be approached by a group looking to establish a medical
marijuana dispensary in your community. The following document explores the need for such
facilities and highlights various benefits and potential pitfalls specific to this developing area.
This document was prepared by Sensible Colorado, the state's leading non-profit working on
behalf of medical marijuana patients. As an introduction, we have arranged the following
questions and answers for your consideration.
What is a Dispensary
A dispensary is a storefront facility which provides marijuana to ill, state-licensed medical
marijuana patients.
Who may access a Dispensary?
Dispensaries may provide medical marijuana to state-licensed medical marijuana patients or
patients who have been recommended marijuana by their doctor. All qualifying patients have
serious, debilitating medical conditions.
Who may operate a Dispensary
Dispensaries are operated by state-licensed medical marijuana caregivers. As defined under
Colorado law, a caregiver is an individual who has significant responsibility for managing the
well-being of a person with a debilitating medical condition.
Are Dispensaries legal?
Under Colorado law, seriously ill Coloradans have the right to acquire and use marijuana for
medical purposes to treat an assortment of debilitating medical conditions. Colorado law
specifically authorizes and licenses caregivers to provide patients with this medicine. (See:
Colorado Const. 0-4-287 - ARTICLE XVIII Sec. 14.)
Please review this document which provides further information on dispensaries including
recommendations on regulation. Please keep in mind that dispensaries are utilized by the
sickest members of your community, so please act to preserve these facilities. For more
information about dispensaries or Colorado's medical marijuana law, please contact Sensible
Colorado at 720 890 4247, info a)sensiblecolorado.ora, or see www.sensiblecolorado.org.
This report was adapted in part from work by the non-profit, Americans for Safe Access
(www.americansforsafeaccess.org).
phone 720.890.4247 • ax720.890,5891 • RO. Box 18768 t Denver, CO 80218-0768 • www.sensiblecolorado.org
Sensible
working for an
effective drug policy
Medical Marijuana Dispensaries: Benefits and
Regulation
Prepared by Sensible Colorado
Working for an effective drug policy
It
nk r 720.890.4247 • fax720.890,5891 • P.O. Box 18768 • Denver, CO 80218-0768 • wbww.strnsiblecolorado.org
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Medical Marijuana Dispensaries: Benefits and Regulation
Table of Contents
IMPACTS OF DISPENSARIES ON COMMUNITIES
Benefits to the Sick and Suffering ]
Education and Expertise I
Reducing Crime and Improving Public Safety .........................................................2
Dispensaries as Good Business Neighbors ..............................................................2
Illegal Resale Generally Not a Problem ................................................................2-3
DISPENSARY RECOMMENDATIONS FOR REGULATION
Regulations Best Handled by Health and Planning Departments ....................................3
Arbitrary Caps are Counterproductive ..................................................................3
Location Restrictions can Create Barriers ...............................................................4
Onsite Consumption and Ventilation ..................................................................4-5
Edibles and Consumption Devices ........................................................................5
Community Oversight ......................................................................................5
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Impact of Dispensaries on Communities
Dispensaries Provide Many Benefits to the Sick and Suffering
For a variety of reasons, many licensed patients find medical marijuana difficult to
obtain. Patients in urban areas often have no space to cultivate plants; rural patients may not
know anyone to procure marijuana seeds from; and patients in both areas often lack the
requisite gardening skills to grow their own medicine. Dispensaries have developed as
compassionate, community-based solutions to fill this need. Dispensaries serve as a
centralized location which provides safe and legal access to this doctor-recommended medicine
and function as a positive alternative to the illicit market.
While dispensaries provide an important way for patients to obtain marijuana, they
often offer other important services to this sick population. Recognizing the isolation and
unique medical issues that seriously ill people often experience, many dispensaries provide a
wide array of social services including massage, meals, community meetings, and more.
Dispensaries Provide Vital Expertise and Educational Information for Patients
Information about marijuana as medicine can be difficult to obtain. Dispensaries fill
this void by providing a unique level of expertise to patients. Dispensary operators possess
unique knowledge about the effects of various strains of marijuana and are able to convey this
information to patients, thus catering to the individual's needs. Dispensaries often offer classes
on marijuana growing and legal matters, trainings for healthcare advocacy, and other seminars.
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Dispensaries Reduce Crime and Improve Public Safety
The presence of a dispensary in the neighborhood can improve public safety and reduce
crime. Most dispensaries take security for their members and staff very seriously and take
many precautions to safeguard their businesses. Security cameras are generally used both
inside and outside the premises, and security guards are often employed to ensure safety.
Visible security measures, such as cameras and security guards, serve as a general deterrent to
criminal activity in the neighborhood. Those likely to engage in criminal activities will tend to
move to a less-monitored area, thereby ensuring a safe environment not only for dispensary
members and staff, but also for neighbors and businesses in the surrounding area.
Dispensaries are Good Business Neighbors
Medical marijuana dispensaries are generally positive additions to the neighborhoods in
which they locate, bringing additional customers to neighboring businesses and reducing crime
in the immediate area. In many communities, the opening of a dispensary has helped revitalize
an area due to increased business interest and foot traffic. Dispensaries also pay taxes on their
business and sales, which benefits the community as a whole.
Why Illegal Resale of Medical Marijuana is Typically Not a Problem
One concern of public officials regarding medical marijuana dispensaries is that
dispensaries make possible the resale of marijuana on the streets. This has not been the
experience of communities with dispensaries in Colorado or in other states. Universally,
dispensaries have strict rules prohibiting resale or otherwise illegal behavior, and members
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violating these rules will be expelled. Dispensaries tend to be open to law enforcement
monitoring and many offer "good neighbor" trainings for their members that emphasize
sensitivity to the concerns of neighbors, law enforcement, and the community.
Dispensary Regulations: Recommendations
Regulations are best handled by Health and Planning Departments, not law enforcement
To ensure that qualified patients, caregivers, and dispensaries are protected, general
regulatory oversight duties-- including permitting, record maintenance and related protocols--
should be the responsibility of the local health or planning departments. Given the mission and
responsibilities of these departments, they are the best-suited option to address the regulation
of medical marijuana dispensaries. Law enforcement agencies, having little expertise in health
and medical affairs, are ill-suited for handling such matters.
Arbitrary caps on the number of dispensaries can be counterproductive
Policymakers do not need to set arbitrary limitations on the number of dispensaries
allowed to operate within a community because, as with other services, competitive market
forces will be decisive. Dispensaries which provide quality care and patient services to their
memberships will flourish, while those that do not will fail. Capping the number of
dispensaries limits consumer choice, which can result in both decreased quality of care and less
affordable medicine. Limiting the number of dispensaries allowed to operate may also force
patients with limited mobility to travel farther distances to obtain the medicine they need.
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Finally, arbitrarily limiting the number of dispensaries can result in an inability to meet
demand, which in turn may lead to such undesirable effects as lines outside of dispensaries,
increased prices, and lower quality medicine.
Restrictions on the locations of dispensaries are often unnecessary and can create
barriers to access
As described in this report, regulated dispensaries do not generally increase crime or
bring other harm to their neighborhoods, regardless of where they are located. Since for many
patients travel is difficult, cities and counties should take care to avoid unnecessary restrictions
on where dispensaries can locate. Patients benefit from dispensaries being convenient and
accessible, especially if the patients are disabled or have conditions that limit their mobility. It
is unnecessary and burdensome to restrict dispensaries to industrial corners, far away from
public transit and other services. Depending on a city's population density, it can also be
extremely detrimental to set excessive proximity restrictions (to schools or other facilities) that
can make it impossible for dispensaries to locate anywhere within the city limits. It is
important to balance patient needs with neighborhood concerns in this process.
Patients benefit from onsite consumption and proper ventilation systems
Dispensaries that allow members to consume medicine onsite allow for greater social
interaction, which can have positive psychosocial health benefits for this chronically ill
population. On-site consumption also encourages dispensary members to take advantage of the
support services at the dispensary which improve patients' quality of life and, in some cases,
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prolong it. Onsite consumption is also important for patients who face restrictions to off-site
consumption-- such as those in subsidized or other housing arrangements that prohibit
smoking. In addition, onsite consumption provides an opportunity for patients to share
information about effective use of marijuana and to take advantage of specialized delivery
methods, such as vaporizers, which do not require smoking.
Patients benefit from access to edibles and medical marijuana consumption devices
Not all patients smoke marijuana. Many find tinctures or edibles to be more effective
for their conditions. Allowing dispensaries to carry these items is important to ensuring that
patients getting the best level of care possible. For patients who have existing respiration
problems or who otherwise have an aversion to smoking, edibles are essential. Conversely, for
patients who do choose to smoke or vaporize, they need to procure the tools to do so.
Prohibiting dispensaries from carrying medical marijuana consumption devices forces patients
to procure these items elsewhere. Additionally, when dispensaries do carry these devices,
informed dispensary staff can explain their usage to new patients.
Community Oversight
In order to appropriately resolve conflict in the community and establish a process by
which complaints and concerns can be reviewed, it can often be helpful to create a community
oversight committee. Such committees, if fair and balanced, can provide a means for the voices
of all affected parties to be heard and allow for common sense resolution of problems.
-end-
For more information, or to contact Sensible Colorado staff, see www.SensibleColorado.org
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MEMORANDUM
TO: Planning Staff
FROM: Rachel Friede
DATE: November 4, 2009
SUBJECT: Medical Marijuana Dispensaries
Medical marijuana dispensaries are not permitted anywhere within the Town of Vail.
On October 20, 2009, the Vail Town Council denied Ordinance No. 22, Series of 2009, which
would have established medical marijuana dispensaries as a conditional use within certain zone
districts within the Town of Vail. The proposed regulations included conditions of approval,
including requirements on location, signage, on-site activities and security. Within the motion
for denial, the Vail Town Council included a finding that medical marijuana dispensaries are not
the same or similar to retail establishments, personal services, medical offices, and
pharmacies/drugstores.
Per Section 12-4-2B, Prohibited If Not Permitted, Vail Town Code, “any use not specifically
permitted as a permitted use is prohibited unless a determination of similar use is made in
accordance with Section 12-3-4 of this Title.” Medical marijuana dispensaries are not a listed
use anywhere within the Town of Vail, and are thus prohibited unless a determination of similar
use is made. The finding by the Vail Town Council that medical marijuana dispensaries are not
a similar use to any listed in the Vail Town Code eliminated the possibility of pursuit of a
determination of similar use, per Section 12-3-4, Determination of Similar Use, Vail Town Code.
Therefore, medical marijuana dispensaries are not permitted anywhere within the Town of Vail
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