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HomeMy WebLinkAbout2013-06-18 Agenda and Support Documentation Town Council Evening SessionVAIL TOWN COUNCIL EVENING SESSION AGENDA VAIL TOWN COUNCIL CHAMBERS 75 S. Frontage Road W. Vail, CO 81657 6:00 P.M., JUNE 18, 2013 NOTE: Times of items are approximate, subject to change, and cannot be relied upon to determine at what time Council will consider an item. 1. ITEM/TOPIC: Citizen Participation. (15 min.) 2. ITEM/TOPIC: Consent Agenda: 1) Holy Cross Energy Utility Easement to power to the ATT tower sites located at Public Works - Tom Kassmel 2) MOU State Digital Trunked Radio System - Dwight Henninger (5 min.) 3. ITEM/TOPIC: Town Manager Report: (5 min.) PRESENTER(S): Stan Zemler 4. ITEM/TOPIC: Dismount Zones Vail Village (15 min.) PRESENTER(S): Dwight Henninger ACTION REQUESTED OF COUNCIL: Discuss, take public comment and decide if bicycle and skateboard dismount zones should be approved in Vail Village BACKGROUND: In October of 2012, the Council discussed the use of dismount zones in Vail Village at the request of merchants in the area. It was requested that the issue be discussed at a future Council meeting with input from the citizens. The attached memorandum from October 2012 provides the authorities to place official traffic control signs to restrict the riding of bicycles and skateboards in the area. STAFF RECOMMENDATION: Dismount zones may provide an added safety measure for the pedestrian public in Vail Village, if Council decides to implement a dismount zone, staff recommends that Council adopt the following direction: Dismount Zone = in Vail Village to include Bridge and Wall Streets and Gore Creek Drive between Checkpoint Charlie and the east end of the Gorsuch building, posted for no bicycle riding and marked with “Dismount” signs. All Dismount Zones apply to skateboards, but not to pedicabs. Dismount is defined as “walking beside the bicycle with both feet off the pedals at the same time.” Skateboard = any device consisting of a footrest mounted on wheels less 6/18/2013 than fourteen inches (14") in diameter, upon which a person may ride, that is propelled solely by human power. This includes, in-line skates, and non- motorized scooters. These devices are not vehicles. They are considered toys by CRS (42-4-109 (Sub.¶9)). The following actions are considered to be safety violations and subject the violator to a $25.00 fine or as set by the Town Judge- Riding in a Dismount Zone 5. ITEM/TOPIC: RAMP & Lionshead Landscape Medians Update and Available TIF Funding (30 min.) PRESENTER(S): Tom Kassmel ACTION REQUESTED OF COUNCIL: Provide staff with direction regarding submitting final applications for the three RAMP projects and the Lionshead Landscape Medians BACKGROUND: The Town applied to CDOT with three projects for $29 million in RAMP funding this past May. The three RAMP projects included; Simba Run Underpass, Frontage Road Improvements, and East Vail Water Quality Improvements. Staff received notification on May 31st that all three submitted projects were pre-selected and now may complete the Final Project Application for final selection this fall. At the June 4th Council work session Council discussed some concern over the required $6 million Town matching funds for the Simba Run Underpass, and expending an additional $1 million on the Lionshead Landscape Medians. Staff proposed funding these projects with Tax Increment Financing (TIF) dollars. The purpose of this Council evening session is to present each RAMP project and the Lionshead Landscape Medians to Council for final direction; and to provide an updated TIF budget projection. STAFF RECOMMENDATION: Staff recommends proceeding with the final round of applications with all three pre-selected RAMP projects; and moving forward with the design of the Lionshead Landscape Medians this year and construction of the medians next year with or without the RAMP funding. This would require adding $6 million of TIF funding to the budget thru 2017 for the Simba Run Underpass matching funds; and $1 million of TIF funding to the 2014 budget for the Lionshead Landscape Medians. 6. ITEM/TOPIC: Ordinance No. 8, Series of 2013 An Emergency Ordinance Adopting a Temporary Moratorium on the Processing and Approval of all Business and Land Use Applications for Private Ski Club Uses Within the Town. (20 min.) PRESENTER(S): George Ruther ACTION REQUESTED OF COUNCIL: Approve, approve with modifications, or deny Ordinance No. 8, Series of 2013. BACKGROUND: The Town Staff ("Staff") has recently received several inquiries to operate private ski clubs within the Town. Staff is studying the effects of allowing private ski clubs to operate within the Town, considering the Town's existing land use regulations and master plan, and will thereafter provide information to the Council as to whether such uses should be permitted at any location in the Town. 6/18/2013 Pursuant to C.R.S. § 31-23-301, the Town is empowered to regulate and restrict zoning, including but not limited to the location and use of buildings within its jurisdiction. Pursuant to C.R.S. § 31-23-303(1), the Town's zoning regulations must be made in accordance with the Comprehensive Plan and designed to, among other things, promote health and general welfare within the Town. Staff needs sufficient time to gather information and study the impacts of private ski clubs and the zone districts in which they should be permitted, if at all. The imposition of a moratorium on the operation of, and the processing and approval of all business and land use applications for private ski clubs will allow the Staff, Town Attorney and the Council to assess whether such uses are in the best interest of the public health, safety and welfare. STAFF RECOMMENDATION: Approve, approve with modifications, or deny Ordinance No. 8, Series of 2013. 7. ITEM/TOPIC: An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the Design Review Board's approval, with conditions, of a design review application for minor exterior alterations to expand storefront windows at 158 Gore Creek Drive Unit 132/Lots A, B, and C, Block 5C, Vail Village Filing 1, and setting forth details in regard thereto. (45 minutes) PRESENTER(S): Joe Batcheller ACTION REQUESTED OF COUNCIL: Pursuant to Section 12-3-3, Appeals, Vail Town Code, the Vail Town Council shall uphold, uphold with modifications, or overturn the Design Review Board's May 1, 2013, decision. BACKGROUND: On May 1, 2013, the Design Review Board approved, with a condition, an application to expand the storefront windows of Gore Creek Gallery and Traveler Books . On May 21, 2013, the Vail Town Council appealed (called-up) the approval of DRB130090 by the Design Review Board. STAFF RECOMMENDATION: Staff recommends the Vail Town Council review the Design Review application for the Gore Creek Gallery and Traveler Books for compliance with the Vail Village Design Consideratons (VVDC) and provide direction to staff and the Design Review Board on the interpretation and application of the VVDC. 8. ITEM/TOPIC: An update regarding recent legislation concerning the regulation of the retail sale of recreational marijuana, which is now referred to as "adult use marijuana." House Bill 13-1317 ("HB 1317") sets forth the licensing structure, House Bill 13-1318 ("HB 1318") addresses taxation and Senate Bill 13-283 ("SB 283") addresses miscellaneous provisions in the Colorado Revised Statutes concerning marijuana use. (20 min.) PRESENTER(S): Matt Mire ACTION REQUESTED OF COUNCIL: Discuss and provide direction. BACKGROUND: By October 1, 2013, all local jurisdictions are required to either prohibit retail marijuana sales or adopt an ordinance identifying the 6/18/2013 entity within the Town that will be responsible for processing applications. (SEE ATTACHED MEMORANDUM). 9. ITEM/TOPIC: An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the Town of Vail Planning and Environmental Commission's approval, with conditions, of a development review application for the review of a variance from Section 12-7B-15, Site Coverage, Vail Town Code, pursuant to Chapter 12-17 Variances, Vail Town Code, to allow for the review of a major exterior alteration or modification, pursuant to Section 12- 7B-7, Exterior Alterations and Modification, Vail Town Code, to allow for the construction of additions, located at 225 Wall Street/Lot B, Block 5C, Vail Village Filing 1, and setting forth details in regard thereto. (5 min.) PRESENTER(S): Warren Campbell ACTION REQUESTED OF COUNCIL: The Vail Town Council is asked to table this item to the July 2, 2013, public hearing, without discussion. 10. ITEM/TOPIC: Adjournment (8:40 p.m.) 6/18/2013 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: Citizen Participation. 6/18/2013 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: Consent Agenda: 1) Holy Cross Energy Utility Easement to power to the ATT tower sites located at Public Works - Tom Kassmel 2) MOU State Digital Trunked Radio System - Dwight Henninger ATTACHMENTS: Holy Cross Energy Easement Memorandum MOU State Digital Trunked Radio System 6/18/2013 To: Town Council From: Public Works Department Date: June 18, 2013 Subject: Holy Cross Energy Easement I. Summary In order to provide power to the new AT&T cell tower at the Town of Vail Public Works Department, Holy Cross Energy requires an easement across Town property. The easement will run parallel with the southern property line along the existing curb and gutter for a width of 15’ and a length of approximately 950’. Staff recommends approving the easement in a form approved by the Town Attorney in order to provide power to the AT&T cell tower. 6/18/2013 6/18/2013 6/18/2013 6/18/2013 6/18/2013 6/18/2013 6/18/2013 6/18/2013 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: Town Manager Report: PRESENTER(S): Stan Zemler 6/18/2013 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: Dismount Zones Vail Village PRESENTER(S): Dwight Henninger ACTION REQUESTED OF COUNCIL: Discuss, take public comment and decide if bicycle and skateboard dismount zones should be approved in Vail Village BACKGROUND: In October of 2012, the Council discussed the use of dismount zones in Vail Village at the request of merchants in the area. It was requested that the issue be discussed at a future Council meeting with input from the citizens. The attached memorandum from October 2012 provides the authorities to place official traffic control signs to restrict the riding of bicycles and skateboards in the area. STAFF RECOMMENDATION: Dismount zones may provide an added safety measure for the pedestrian public in Vail Village, if Council decides to implement a dismount zone, staff recommends that Council adopt the following direction: Dismount Zone = in Vail Village to include Bridge and Wall Streets and Gore Creek Drive between Checkpoint Charlie and the east end of the Gorsuch building, posted for no bicycle riding and marked with “Dismount” signs. All Dismount Zones apply to skateboards, but not to pedicabs. Dismount is defined as “walking beside the bicycle with both feet off the pedals at the same time.” Skateboard = any device consisting of a footrest mounted on wheels less than fourteen inches (14") in diameter, upon which a person may ride, that is propelled solely by human power. This includes, in-line skates, and non-motorized scooters. These devices are not vehicles. They are considered toys by CRS (42-4-109 (Sub.¶9)). The following actions are considered to be safety violations and subject the violator to a $25.00 fine or as set by the Town Judge- Riding in a Dismount Zone ATTACHMENTS: October 2012 Dismount Memo 6/18/2013 To: Vail Town Council From: Dwight Henninger, Chief of Police Justin Dill, Sergeant Date: October 10, 2012 Subject: Bicycle Dismount Zone in Vail Village I. SUMMARY The question has been raised if the Town can implement a bicycle dismount zone in the area of Bridge Street and Gore Creek Drive, the answer is yes. If Council desires the Village area to be a bicycle dismount zone, this can be accomplished for next spring. II. DISCUSSION After some research into the legality of a bicycle dismount zone covering the Village Street in the Town of Vail, we have the authority to erect official traffic control devices to create a designated bicycle dismount zone. Staff recommends this new proposal to exclude the Pedi cabs as they have a specific Town ordinance regulating their operating capability. Staff does not believe we need to enact a separate ordinance to create a dismount zone based on existing statute and code. We have been unable to locate any specific ordinance in cities enforcing dismount zones, like Ft. Collins, beyond obedience to official traffic control devices. Currently the stairs on Wall Street and near the Children’s Fountain have dismount signs. 6/18/2013 Town of Vail Page 2 III. STATUES, CODES AND CASE LAW Following is the pertinent Colorado Revised Statues and Model Traffic Code citations as well as a case law citation with respect to home-rule and enacting laws of municipal concern if it were determined a desire to create a specific municipal ordinance. Included is language defining a dismount zone from the bicycle rules handbook from Colorado State University in Ft. Collins. Under C.R.S. 42-4-1412 (10)(b) and Model Traffic Code 1412: 42-4-1412. Operation of bicycles and other human-powered vehicles (1) Every person riding a bicycle or electrical assisted bicycle shall have all of the rights and duties applicable to the driver of any other vehicle under this article, except as to special regulations in this article and except as to those provisions which by their nature can have no application. Said riders shall comply with the rules set forth in this section and section 42-4-221, and, when using streets and highways within incorporated cities and towns, shall be subject to local ordinances regulating the operation of bicycles and electrical assisted bicycles as provided in section 42-4-111. (10) (b) A person shall not ride a bicycle or electrical assisted bicycle upon and along a sidewalk or pathway or across a roadway upon and along a crosswalk where such use of bicycles or electrical assisted bicycles is prohibited by official traffic control devices or local ordinances. A person riding a bicycle or electrical assisted bicycle shall dismount before entering any crosswalk where required by official traffic control devices or local ordinances. Under 42-4-111(1)(y): 42-4-111. Powers of local authorities (1) This article shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, except those streets and highways that are parts of the state highway system that are subject to section 43-2-135, C.R.S., from: (y) Regulating the local movement of traffic or the use of local streets where such is not provided for in this article; Here is a case law citation regarding home rule and matters of municipal concern: Municipal ordinance of local concern supersedes conflicting state statute. Under the home-rule amendment, once a matter is determined to be a matter of local and municipal concern, any local ordinance in a home-rule city addressing the matter will 6/18/2013 Town of Vail Page 3 supersede a conflicting state statute. People v. Hizhniak, 195 Colo. 427, 579 P.2d 1131 (1978). The following references were obtained from : police.colostate.edu/pdfs/Bike- Booklet.pdf Dismount Zone = all areas of the University posted for no bicycle riding and marked with ground graphics and/or “Dismount” signs. All Dismount Zones apply to skateboards as well. 1. Dismount is defined as “walking beside the bicycle with both feet off the pedals at the same time.” Q. Skateboard = any device consisting of a footrest mounted on wheels less than fourteen inches (14") in diameter, upon which a person may ride, that is propelled solely by human power. This includes rollerskates, in-line skates (rollerblades), and non- motorized scooters. These devices are not vehicles. They are considered toys by CRS (42-4-109 (Sub.¶9)). The following actions are considered to be safety violations and subject the violator to a $25.00 fine: – Riding in a Dismount Zone IV. CONCLUSION If Council desires to implement a bicycle dismount zone for the Village, this can be done with the existing legislation at your direction for this next summer. 6/18/2013 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: RAMP & Lionshead Landscape Medians Update and Available TIF Funding PRESENTER(S): Tom Kassmel ACTION REQUESTED OF COUNCIL: Provide staff with direction regarding submitting final applications for the three RAMP projects and the Lionshead Landscape Medians BACKGROUND: The Town applied to CDOT with three projects for $29 million in RAMP funding this past May. The three RAMP projects included; Simba Run Underpass, Frontage Road Improvements, and East Vail Water Quality Improvements. Staff received notification on May 31st that all three submitted projects were pre-selected and now may complete the Final Project Application for final selection this fall. At the June 4th Council work session Council discussed some concern over the required $6 million Town matching funds for the Simba Run Underpass, and expending an additional $1 million on the Lionshead Landscape Medians. Staff proposed funding these projects with Tax Increment Financing (TIF) dollars. The purpose of this Council evening session is to present each RAMP project and the Lionshead Landscape Medians to Council for final direction; and to provide an updated TIF budget projection. STAFF RECOMMENDATION: Staff recommends proceeding with the final round of applications with all three pre-selected RAMP projects; and moving forward with the design of the Lionshead Landscape Medians this year and construction of the medians next year with or without the RAMP funding. This would require adding $6 million of TIF funding to the budget thru 2017 for the Simba Run Underpass matching funds; and $1 million of TIF funding to the 2014 budget for the Lionshead Landscape Medians. ATTACHMENTS: PW memo Finance Memo VRA Forecast Presentation 6/18/2013 To: Town Council From: Public Works Date: 6-18-13 Subject: RAMP & Lionshead Medians Update and Available TIF Funding I. SUMMARY At the April 16th Council work session Council directed staff to apply to CDOT with three projects for RAMP funding and to provide a concept plan and estimated cost to install landscape medians from the Lionshead Parking Structure Entry west to Vail Spa. The three RAMP projects included; • Simba Run Underpass • Frontage Road Improvements • East Vail Water Quality Improvements Staff received notification on May 31st that all three submitted projects were pre- selected and now may complete the Final Project Application for final selection this fall. At the June 4th Council work session Council discussed some concern over the required $6 million Town matching funds for the Simba Run Underpass, and expending an additional $1 million on the Lionshead Landscape Medians. Staff proposed funding these projects with Tax Increment Financing (TIF) dollars. The purpose of this Council evening session is to present each RAMP project and the Lionshead Landscape Medians to Council for final direction; and to provide an updated TIF budget projection. II. PROJECT DETAIL The Simba Run project is a proposed new underpass under I-70 that connects the North and South Frontage Roads. It is located approximately half way between the Main Vail and West Vail interstate exits; more specifically at its name sake, the Simba Run Condominiums. The project has been discussed since the early 1990’s and is referenced in numerous Vail master plans and transportation related documents including the I-70 PEIS. It provides connectivity between the North and South Frontage Roads for vehicles, pedestrians, bicyclist, and transit operations. It also relieves some 6/18/2013 Town of Vail Page 2 congestion at the Main and West Vail roundabouts by providing a more direct route between Lionshead area and the West Vail Mall area. The total project cost submitted for RAMP funding is $20.6 million. In order to provide the best chance of success in the selection process the Town has submitted a match of $6.0 million or 29% to be funded by the VRA and TIF dollars(See attached TIF memo). It is also a project that has already begun a joint feasibility study between CDOT and the Town of Vail. This joint project is more specifically known as a Planning and Environmental Linkage (PEL) report to understand the projects impacts. The PEL project will have its initial Public Meeting on August 6th, with an introductory Council meeting that same evening. The Frontage Road Improvements project consists of upgrading the entire Frontage Road system within Vail to current transportation standards. Improvements include; shoulders/bike lanes, auxiliary/turn lanes where required, medians where appropriate, and necessary maintenance, including an asphalt overly on both the North and South Frontage Roads and spot reconstruction as necessary. The project would bring the Frontage Roads up to a standard that would make taking over the Frontage Roads more realistic if the Town and CDOT so desired at some point in the future. The submitted total project cost is $23.3 million. Of which, $4.6 million has already been constructed by the Town in the form of widened bike lanes and shoulders over the past few years, and $5.0 million is currently in the Town’s budget from TIF & RETT for additional improvements over the next couple of years; thus totaling an available Town match of $9.6 million dollars or 46%. The major improvement projects that are a part of this funding request include; • Cascade shoulders/bike lanes $0.5m 2014 • Lionshead to Vail Spa medians $1.0m 2014 • North Frontage shoulders/bike lanes $1.5m 2015 • Timber Ridge turn lanes $1.0m 2015 • Buffehr Creek turn lane $0.5m 2015 • Lions Ridge Loop turn lane $0.5m 2015 • Red Sandstone Rd & School turn lanes $0.8m 2015 • Bald Mountain turn lane $0.3m 2016 • Booth Creek turn lane $0.4m 2016 • 2” Structural Overlay & Spot Reconstruction $8.0m 2016 • Municipal Building to Lionshead Parking Entry $3.0m 2017 The dollars amounts in bold are those that are currently within the Town’s budget and are the matching funds for the RAMP funding. The year shown for each improvement is a preliminary look at phasing opportunities, moving the Municipal Building to Lionshead improvement to last to account for any changes necessary for Hospital Master Plan. 6/18/2013 Town of Vail Page 3 The East Vail Water Quality project is a project that provides water quality treatment within retentions basins near the Gore Creek Campground / I-70 overpass and within underground facilities at the East Vail interchange. This project is identified in the Gore Creek Water Quality Improvement Plan and is an ideal project for a joint partnership with CDOT. The project was submitted with a total project budget of $1.14 million. In order to provide the best chance of success in the selection process the Town has submitted a match of $440 thousand or a 39% match to be funded by the existing Water Quailty improvement budget. The Lionshead Landscape Medians project is a project that was previously discussed to enhance the South Frontage Road from the Lionshead Parking Structure entry west to Vail Spa. This section of roadway was recently widened to accommodate overflow parking, turn lanes and bike lanes which resulted in large areas of painted asphalt medians. These medians could be replaced with landscaped medians similar to the ones recently installed in front of the Ritz Carlton, Four Seasons, Sebastian, and Solaris. This project is a part of the above mentioned Frontage Road Improvements RAMP project, however, it is recommended to move forward with this project with or without the RAMP funds. This project itself is estimated at $1 million, which could be paid by the VRA with TIF dollars if the RAMP funding is not approved (See attached TIF memo). It would be beneficial to have this project constructed next spring in order to be complete prior to CDOT’s scheduled Frontage Road asphalt overlay next summer and fall, and complete prior to the 2015 World Ski Championships. Because this project doubles the amount of landscape medians in Town, increased maintenance and operation costs for irrigation, landscaping, and snow removal would need to be considered in future budgets. III. RECOMMENDATION Staff recommends proceeding with the final round of applications with all three pre- selected RAMP projects; and moving forward with the design of the Lionshead Landscape Medians this year and construction of the medians next year with or without the RAMP funding. This would require adding $6 million of TIF funding to the budget thru 2017 for the Simba Run Underpass matching funds; and $1 million of TIF funding to the 2014 budget for the Lionshead Landscape Medians. As mentioned above, the $1 million for landscape medians would not be needed from TIF if the RAMP funding for frontage road improvements is approved. If all three RAMP projects are selected in the final round, the following matching funds will be required over the next 4 years. Total Previous Vail RAMP Project Cost Match Match Funds • Simba Run Underpass $20.60m $0.00 $6.00m $14.6m • Frontage Road $23.30m $4.60m $5.00m $13.7m • East Vail Water Quality $ 1.14m $0.00 $0.44m $0.70m 6/18/2013 Town of Vail Page 4 Based on the TIF expense and revenue projections provided by the Finance Department (See attached TIF memo) there will be adequate TIF funds to pay for all currently budgeted TIF projects and the additional $6 million for the Simba Run Underpass, as well as an additional $1 million for the Lionshead Landscape Medians, and still maintain a minimum $1 million dollar yearly balance thru 2017. Beyond 2017 TIF revenue continues to be collected thru 2030. The projected total collections after 2017 is an additional $38 million which can be spent on other Lionshead TIF district capital projects. At this time the only other TIF project contemplated above and beyond the 2017 projects is the expansion of the Lionshead Parking. A list of completed and budgeted projects thru 2017 is attached. IV. ATTACHMENTS TIF Funding for RAMP Projects – Finance Department Presentation 6/18/2013 To: Town Council From: Finance Department Date: June 13, 2013 Subject: TIF Funding for RAMP Projects I. BACKGROUND On June 4, Council discussed three projects which have been approved to move to the second step of submission for RAMP grant funding from CDOT. Questions were asked regarding tax increment financing (TIF) related to two of the projects. The Simba Run Underpass project is expected to cost a total of $20 million with $14 million from the RAMP grant and $6 million in matching funds from the town, which are not included in the current budget or five-year capital plan. Council asked if the $6 million could be funded by the Vail Reinvestment Authority (VRA) through TIF and whether the underpass was the best use for $6 million of TIF. For the Frontage Road Improvements project, $3 million of the $5 million required match is included in the VRA five-year capital plan, with the additional $2.0 million included in the Real Estate Transfer Tax Fund five-year plan. If the project is granted RAMP funding, landscaped medians from Lionshead to Vail Spa will be paid for from the grant. However, if RAMP funding is not approved, Council asked if $1.0 million is available from the VRA without a reduction in the funds planned for the frontage road improvements from the muni building to Lionshead. II. VAIL REINVESTMENT AUTHORITY PROJECTION The attached spreadsheet shows a five-year projection for the VRA with the following adjustments included: • Property tax revenue adjusted for most recent preliminary assessed valuations • Federal subsidy for Build America Bonds reduced by 8.7% per federal budget reduction • Parking Structure Capital Maintenance - $300K reallocated to parking system entry equipment in 2013 and annual amount reduced in 2014 through 2017 based on history • Simba Run Underpass - $6 million total funded from 2014 through 2016 • Lionshead to Vail Spa Landscape Medians - $1 million funded in 2014 6/18/2013 Town of Vail Page 2 • East Lionshead Circle pathway to Dobson moved from 2016 to 2017 to accommodate cash flow and construction schedules The resulting fund balances are positive throughout the five-year horizon with $1.3 million remaining at the end of 2017 With no additional projects specified beyond 2017, projections for the remaining life of the TIF district show $39.6 million of cash available from 2018 through 2030. Debt financing would reduce the amount available for project spending based upon how much debt was incurred and for how long. III. CONCLUSION Using cash from TIF to fund $6 million for the Simba Run Underpass and $1 million for landscaped medians would not jeopardize any of the projects currently planned. Beyond 2017, an estimated $39.6 million is expected to be available for additional cash funded projects. If we chose not to spend the $6 million to fund a RAMP match for Simba Run and decide later to do the project without CDOT, the amount available for other projects would be reduced by at least $14 million to an estimated $25 million. 6/18/2013 20122013 ActualProjected2014201520162017 Revenue Property Tax - LionsHead TIF2,967,340$ 2,964,000$ 3,264,000$ 3,264,000$ 3,427,200$ 3,427,200$ Property Tax - Vail Square Metro Districts416,153 415,000 457,000 457,000 479,850 479,850 Federal Subsidy for Build America Bonds180,619 158,262 158,262 158,262 158,262 158,262 Earnings on Investments12,817 15,000 9,000 6,000 7,000 4,000 Total Revenue3,576,929 3,552,262 3,888,262 3,885,262 4,072,312 4,069,312 Operating Expenditures Professional Fees1,535 25,000 25,000 25,000 25,000 25,000 Management Fee 59,352 59,280 65,280 65,280 68,544 68,544 Treasurer's Fee -LionsHead TIF89,027 88,920 97,920 97,920 102,816 102,816 Treasurer's Fee -Vail Square Metro Districts12,485 12,450 13,710 13,710 14,396 14,396 Vail Square Metro District Pass Through403,668 402,550 443,290 443,290 465,455 465,455 Total Operating566,067 588,200 645,200 645,200 676,210 676,210 Debt Service Principal445,000 460,000 475,000 490,000 500,000 515,000 Interest618,778 605,203 591,178 577,928 564,928 564,928 Fiscal Agent fees- 2,200 2,200 2,200 2,200 2,200 Total Debt Service 1,063,778 1,067,403 1,068,378 1,070,128 1,067,128 1,082,128 Total Expenditures 1,629,845 1,655,603 1,713,578 1,715,328 1,743,338 1,758,338 Excess of Revenues Over Expenditures1,947,084 1,896,659 2,174,684 2,169,934 2,328,974 2,310,974 Other Financing Sources (Uses) Transfer Out - Capital Projects Fund LionsHead Welcome Center(829,027) (94,536) Guest Services Enhancements/Wayfinding(265,610) (570,000) Library Remodel(1,955,231) (298,497) East LionsHead Portal (VRA)(1,652,728) (463,561) West LionsHead Portal (VRA)(642,956) (129,544) LionsHead Parking Structure Entry (200,000) (1,000,000) Frontage Road improvements (LH Pkg to Muni)(3,000,000) Parking Entry System / Equipment (LH only)(300,000) CDOT-Required Parking Sundial Plaza fountain & surround(9,432) (840,568) East LH Circle pathway to Dobson (890,000) Dobson Plaza (1,075,000) Simba Run Underpass Feasibility study (200,000) Simba Run Underpass - RAMP project (600,000) (1,000,000) (2,200,000) (2,200,000) Lionshead Landscape Medians (without RAMP)(1,000,000) LionsHead Parking Structure Capital Maintenance- (10,000) (50,000) (50,000) (50,000) (50,000) Total Other Financing Sources (Uses)(5,354,984) (3,106,706) (5,650,000) (1,050,000) (3,140,000) (3,325,000) Net Change in Fund Balance (3,407,900) (1,210,047) (3,475,316) 1,119,934 (811,026) (1,014,026) Beginning Fund Balance10,143,991 6,736,091 5,526,044 2,050,728 3,170,662 2,359,637 Ending Fund Balance 6,736,091$ 5,526,044$ 2,050,728$ 3,170,662$ 2,359,637$ 1,345,611$ SUMMARY OF REVENUE, EXPENDITURES, AND CHANGES IN FUND BALANCE VAIL REINVESTMENT AUTHORITY PROJECTION - 1 - 6/18/2013 RA M P P r o j e c t s & L i o n s h e a d L a n d s c a p e M e d i a n s an d T I F F u n d i n g U p d a t e Ju n e 1 8 , 2 0 1 3 6/18/2013 Pu r p o s e 2 RA M P  Pr o j e c t s • To w n  wa s  se l e c t e d  to  su b m i t  3 pr o j e c t s  to  CD O T  fo r  $2 9  mi l l i o n  in  RAMP Funding Pr o j e c t V a i l  Ma t c h C D O T  Funds • Si m b a R u n  Un d e r p a s s $    6. 0  m $ 1 4 . 6  m • Fr o n t a g e  Ro a d  Im p r o v e m e n t s $    5. 0  m $ 1 3 . 7  m • Ea s t  Va i l  Wa t e r  Qu a l i t y $    0. 4 4 m $    0.7 m $1 1 . 4 4 m $ 2 9 . 0  m Li o n s h e a d L a n d s c a p e  Me d i a n s • Co u n c i l  re q u e s t e d  to  se e  a co n c e p t  pl a n  fo r  Li o n s h e a d L a n d s c a p e  Medians • Li o n s h e a d M e d i a n s $    1. 0  m Fu n d i n g • Al l  li s t e d  Va i l  fu n d i n g  is  cu r r e n t l y  wi t h i n  th e  To w n ’ s  bu d g e t  ex c e p t ; • Si m b a R u n  Un d e r p a s s $    6. 0  m • Li o n s h e a d M e d i a n s $    1. 0  m • Th e s e  ca n  be  fu n d e d  by  TI F  do l l a r s  th r u  20 1 7 6/18/2013 Ba c k g r o u n d 3 • A pa r t  of  VT M P ( 1 9 9 3 ‐20 0 9 ) ,  LH M P ( 1 9 9 9 ‐20 1 1 ) ,  Va i l  20 / 2 0  Pl a n  (2 0 0 7 ) ,  &  th e  VR A  Li o n s h e a d P u b l i c  Fa c i l i t i e s  De v e l o p m e n t  Pl a n ( R e s o l u t i o n  Series 9 of  20 0 5 ) Si m b a R u n  Un d e r p a s s • Si m b a R u n  un d e r p a s s  is  a pr o j e c t  th a t  ha s  be e n  a pa r t  of  th e  To w n ’ s  master  pl a n n i n g  si n c e  19 9 3 .    It  is  a ne w  I‐70  Un d e r p a s s  th a t  co n n e c t s  th e  North and  So u t h  Fr o n t a g e  Ro a d s  ap p r o x i m a t e l y  ha l f  wa y  be t w e e n  th e  Ma i n  and West Vail  Ex i t s . I t  pr o v i d e s ; • Co m m u n i t y  Co n n e c t i v i t y • Ve h i c u l a r ,  Pe d e s t r i a n ,  Bi c y c l e  Co n n e c t i o n • Im p r o v e s  Tr a n s i t  Se r v i c e • Im p r o v e s  Em e r g e n c y  Se r v i c e • Im p r o v e s  tr a f f i c  fl o w  at  ex i s t i n g  ro u n d a b o u t s / u n d e r p a s s e s • Im p r o v e s  tr a v e l  ti m e s  be t w e e n  ar e a s  se p a r a t e d  by  In t e r s t a t e 6/18/2013 4 6/18/2013 Ba c k g r o u n d 5 • A pa r t  of  VT M P ( 1 9 9 3 ‐20 0 9 ) ,  LH M P ( 1 9 9 9 ‐20 1 1 ) ,  Va i l  20 / 2 0  Pl a n  (2 0 0 7 ) ,  &  th e  VR A  Li o n s h e a d P u b l i c  Fa c i l i t i e s  De v e l o p m e n t  Pl a n ( 2 0 0 5 ) Fr o n t a g e  Ro a d  Im p r o v e m e n t s • Th e  Fr o n t a g e  Ro a d  Im p r o v e m e n t  pr o j e c t  im p r o v e s  sa f e t y ,  ca p a c i t y ,  and  co n d i t i o n  of  th e  ex i s t i n g  No r t h  an d  So u t h  Fr o n t a g e  Ro a d s ,  th e  im p r o v e m e n t s   in c l u d e ; • 2”  As p h a l t  Ov e r l a y  & Sp o t  Re c o n s t r u c t i o n  on  Fr o n t a g e  Ro a d s • No r t h  & So u t h  Fr o n t a g e  sh o u l d e r s / b i k e  la n e s • Mu n i c i p a l  Bu i l d i n g  to  Li o n s h e a d P a r k i n g  En t r y  Im p r o v e m e n t s • Li o n s h e a d t o  Va i l  Sp a  me d i a n s • Bu f f e h r C r e e k  tu r n  la n e • Li o n s  Ri d g e  Lo o p  tu r n  la n e • Ti m b e r  Ri d g e  tu r n  la n e s • Re d  Sa n d s t o n e  Rd  & Sc h o o l  tu r n  la n e s • Ba l d  Mo u n t a i n  tu r n  la n e • Bo o t h  Cr e e k  tu r n  la n e 6/18/2013 6 VA I L  TR A N S P O R T A T I O N  MA S T E R  PL A N  (2 0 0 9 ) 6/18/2013 Ba c k g r o u n d 7 • Ba s e d  on  th e  Go r e  Cr e e k  Wa t e r  Qu a l i t y  Im p r o v e m e n t  Pl a n  (2 0 1 3 ) Ea s t  Va i l  Wa t e r  Qu a l i t y  Pr o j e c t • Th e  Ea s t  Va i l  Wa t e r  Qu a l i t y  Im p r o v e m e n t  Pr o j e c t  in c l u d e s  tw o  pr o j e c t s   de v e l o p e d  as  a re s u l t  of  th e  Go r e  Cr e e k  Wa t e r  Qu a l i t y  Im p r o v e m e n t  Plan, the  im p r o v e m e n t s  in c l u d e ; • Wa t e r  qu a l i t y  re t e n t i o n  ba s i n s  ne a r  Go r e  Cr e e k  Ca m p g r o u n d  / I‐70  Un d e r p a s s • Wa t e r  qu a l i t y  un d e r g r o u n d  fa c i l i t i e s  at  th e  Ea s t  Va i l  in t e r c h a n g e 6/18/2013 8 EA S T  VA I L  WA T E R  QU A L I T Y  IM P R O V E M E N T 6/18/2013 Ba c k g r o u n d 9 Li o n s h e a d L a n d s c a p e  Me d i a n s • Li o n s h e a d P a r k i n g  St r u c t u r e  En t r y  We s t  to  Va i l  Sp a • Mo d i f y  ex i s t i n g  pa i n t e d  as p h a l t  me d i a n s  to  ra i s e d  La n d s c a p e  medians 6/18/2013 6/18/2013 6/18/2013 6/18/2013 6/18/2013 Fu n d i n g 10 Su m m a r y RA M P  Pr o j e c t V a i l  Ma t c h R A M P  Fu n d i n g • Si m b a R u n  Un d e r p a s s $    6. 0  m* $ 1 4 . 6  m • Fr o n t a g e  Ro a d  Im p r o v e m e n t s $    5. 0  m* * $ 1 3 . 7  m • Ea s t  Va i l  Wa t e r  Qu a l i t y $    0. 4 4 m * * $    0. 7  m $1 1 . 4 4 m $ 2 9 . 0  m • Li o n s h e a d L a n d s c a p e  Me d i a n s $    1. 0  m* *     Re q u i r e s  bu d g e t i n g  fr o m  TI F F  do l l a r s ** Re q u i r e s  no  ad d i t i o n a l  bu d g e t i n g  do l l a r s ,  al r e a d y  wi t h i n  ne x t  tw o  ye a r s  budget 6/18/2013 Fu n d i n g 11 TI F  Pr o j e c t s Pr o j e c t S c h e d u l e B u d g e t • Li o n s h e a d T r a n s i t  Ce n t e r C o m p l e t e d • Li o n s h e a d W e l c o m e  Ce n t e r C o m p l e t e d • Li b r a r y  Re m o d e l C o m p l e t e d • E LH  Ci r c l e  an d  CH P  St r e e t s c a p e C o m p l e t e d • Li o n s h e a d W a y f i n d i n g / E n h a n c e m e n t s 2 0 1 3 $ 0 . 6 m • Li o n s h e a d P a r k 2 0 1 3 $ 0 . 8 5 m • Mu n i c i p a l  Bl d g t o  LH  En t r y 2 0 1 4 $ 3 m • Li o n s h e a d E n t r y  Im p r o v e m e n t s 2 0 1 4 $ 1 . 2 m • Li o n s h e a d T i c k e t  Eq u i p m e n t 2 0 1 4 $ 0 . 3 m • Ea s t  LH  Ci r c l e  ro a d  Im p r o v e m e n t s 2 0 1 6 $ 0 . 9 m • Do b s o n / L i b r a r y  Pl a z a  Im p r o v e m e n t s 2 0 1 6 $ 1 m • Si m b a R u n  Un d e r p a s s 2 0 1 3 ‐17 $ 6 m * • Li o n s h e a d L a n d s c a p e  Me d i a n s 2 0 1 4 $ 1 m * • Li o n s h e a d E x p a n d e d  Pa r k i n g   TB D T B D * *P r o j e c t s  no t  cu r r e n t l y  wi t h i n  To w n  Bu d g e t 6/18/2013 Fu n d i n g 12 TI F  Fu n d i n g Va i l  wi l l  re c e i v e  TI F  re v e n u e  th r u  20 3 0 .  Cu r r e n t l y  th e  ex p e n s e / r e v e n u e  is estimated as  fo l l o w s ; Bu d g e t  Ye a r P r o j e c t e d  EO Y  Ba l a n c e • 20 1 3 $    5. 5  m • 20 1 7 $    1. 3  m   (In c l u d e s  Si m b a a n d  LH  me d i a n s ) • 20 3 0 $ 3 9 . 6  m 6/18/2013 Ne x t S t e p s 13 RA M P  Ap p l i c a t i o n • Co m p l e t e  Fi n a l  RA M P  ap p l i c a t i o n  an d  su b m i t J u l y  1,  20 1 3 • RA M P  se l e c t i o n  by  Tr a n s p o r t a t i o n  Co m m i s s i o n S e p t e m e b e r 1 9 ,  2013 • RA M P  pr o j e c t  De s i g n  an d  Co n s t r u c t i o n 2 0 1 3 ‐20 1 7 To w n  of  Va i l    |   Ze h r e n a n d  As s o c i a t e s |    Ki m l e y ‐Ho r n  an d  As s o c i a t e s Li o n s h e a d L a n d s c a p e  Me d i a n s • De s i g n  LH  Me d i a n s  wi t h  LH  St r e e t s c a p e  bu d g e t  (e x i s t i n g ) ,  so  we  ma i n t a i n  the  op t i o n  to  co n s t r u c t  th e m  in  Sp r i n g  20 1 4 .  (N o  in c r e a s e  in  20 1 3  bu d g e t ) • If  Fr o n t a g e  Ro a d  RA M P  pr o j e c t  is  se l e c t e d ,  co n s t r u c t  wi t h  RA M P  fu n d s  Spring 2014; • If  NO T  se l e c t e d  fo r  RA M P  ad d  $1 m  to  20 1 4  TI F  Bu d g e t 6/18/2013 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: Ordinance No. 8, Series of 2013 An Emergency Ordinance Adopting a Temporary Moratorium on the Processing and Approval of all Business and Land Use Applications for Private Ski Club Uses Within the Town. PRESENTER(S): George Ruther ACTION REQUESTED OF COUNCIL: Approve, approve with modifications, or deny Ordinance No. 8, Series of 2013. BACKGROUND: The Town Staff ("Staff") has recently received several inquiries to operate private ski clubs within the Town. Staff is studying the effects of allowing private ski clubs to operate within the Town, considering the Town's existing land use regulations and master plan, and will thereafter provide information to the Council as to whether such uses should be permitted at any location in the Town. Pursuant to C.R.S. § 31-23-301, the Town is empowered to regulate and restrict zoning, including but not limited to the location and use of buildings within its jurisdiction. Pursuant to C.R.S. § 31-23-303(1), the Town's zoning regulations must be made in accordance with the Comprehensive Plan and designed to, among other things, promote health and general welfare within the Town. Staff needs sufficient time to gather information and study the impacts of private ski clubs and the zone districts in which they should be permitted, if at all. The imposition of a moratorium on the operation of, and the processing and approval of all business and land use applications for private ski clubs will allow the Staff, Town Attorney and the Council to assess whether such uses are in the best interest of the public health, safety and welfare. STAFF RECOMMENDATION: Approve, approve with modifications, or deny Ordinance No. 8, Series of 2013. ATTACHMENTS: Ordinance No. 8, Series of 2013 6/18/2013 Ordinance No. 8, Series of 2013 ORDINANCE NO. 8 SERIES 2013 AN EMERGENCY ORDINANCE ADOPTING A TEMPORARY MORATORIUM ON THE PROCESSING AND APPROVAL OF ALL BUSINESS AND LAND USE APPLICATIONS FOR PRIVATE SKI CLUB USES WITHIN THE TOWN WHEREAS, the Town of Vail, in the County of Eagle and State of Colorado (the "Town"), is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Vail Town Charter; WHEREAS, the members of the Town Council have been duly elected and qualified; WHEREAS, pursuant to C.R.S. § 31-23-301, the Town is empowered to regulate and restrict zoning, including but not limited to the location and use of buildings within its jurisdiction; WHEREAS, pursuant to C.R.S. § 31-23-303(1), the Town's zoning regulations must be made in accordance with the Comprehensive Plan and designed to, among other things, promote health and general welfare within the Town; WHEREAS, the Town has recently received several inquiries and/or applications to operate private ski clubs within the Town; WHEREAS, it is the desire of the Town Council that Town Staff study the effects of allowing private ski clubs to operate within the Town, considering the Town's existing land use regulations and master plan, and thereafter provide information to the Town Council as to whether such uses should be permitted at any location in the Town; WHEREAS, Town Staff needs sufficient time to gather information and study the impacts of private ski clubs and the zone districts in which they should be permitted, if at all; WHEREAS, the imposition of a moratorium on the operation of, and the processing and approval of all business and land use applications for private ski clubs will allow the Town Staff, Town Attorney and the Town Council to assess whether such uses are in the best interest of the public health, safety and welfare; and WHEREAS, due to the recent inquiries and/or applications received by the Town for such uses, the Town Council finds and determines that an emergency exists sufficient to place a temporary moratorium on the processing and approval of all business and land use applications for private ski club uses during the time that Town staff studies the impacts of such uses and the proper location for such establishments, if permitted. 6/18/2013 Ordinance No. 8, Series of 2013 NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Findings and Intent. The foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council of the Town of Vail. Section 2. Temporary Moratorium. Upon the adoption of this ordinance, a moratorium is imposed on the processing and approval of all business and land use applications for operation of any private ski club use within the Town. Town Staff is directed to refuse to process, review or approve any such applications for the operation of private ski clubs. It shall further be unlawful for any person to operate, cause to be operated, or permit to be operated in the Town a private ski club at any location within the Town unless the Town expressly authorized such use prior to the adoption of this ordinance. For purposes of this ordinance, the term "private ski club" means a members-only club that serves alcoholic beverages and other refreshment with on-site ski storage, or any similar use. Section 3. Investigation and Evaluation. During the term of this moratorium, Town Staff shall investigate, evaluate and update the Town's Code as necessary to regulate or prohibit the operation of private ski clubs within the Town. Section 4. Authority. The Town Council hereby finds, determines and declares that it has the power to adopt this ordinance pursuant to: (i) The Local Government Land Use Control Enabling Act, Article 20 of Title 29 C.R.S.; (ii) Part 3 of Article 23 of Title 31, C.R.S. (concerning municipal zoning powers); (iii) Section 31-15-103, C.R.S. (concerning municipal police powers); (iv) Section 31-15-401, C.R.S. (concerning municipal police powers); (v) Section 31-15-501, C.R.S. (concerning municipal power to regulate businesses); (vi) The authority granted to home rule municipalities by Article XX of the Colorado Constitution; and (vii) The powers contained in the Town of Vail Town Charter. Section 5. Expiration. The moratorium imposed by this ordinance shall commence as of the date of the adoption of this ordinance and shall expire on December 17, 2013, unless earlier repealed or extended, as determined by Town ordinance. 6/18/2013 Ordinance No. 8, Series of 2013 Section 6. 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 7. The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 8. 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. Section 9. Pursuant to Section 4.11 of the Vail Town Charter, this ordinance is deemed necessary for the protection of the public health, welfare and safety, because the location of private ski clubs within the Town prior to the time that Town staff has had an adequate opportunity to study the effects of such establishments and the proper location for such establishments, if any, could cause irreparable harm to the Town and its residents and visitors. INTRODUCED, READ, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST AND FINAL READING this 18th day of June, 2013. _____________________________ Andrew P. Daly, Mayor ATTEST: ____________________________ Lorelei Donaldson, Town Clerk 6/18/2013 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the Design Review Board's approval, with conditions, of a design review application for minor exterior alterations to expand storefront windows at 158 Gore Creek Drive Unit 132/Lots A, B, and C, Block 5C, Vail Village Filing 1, and setting forth details in regard thereto. PRESENTER(S): Joe Batcheller ACTION REQUESTED OF COUNCIL: Pursuant to Section 12-3-3, Appeals, Vail Town Code, the Vail Town Council shall uphold, uphold with modifications, or overturn the Design Review Board's May 1, 2013, decision. BACKGROUND: On May 1, 2013, the Design Review Board approved, with a condition, an application to expand the storefront windows of Gore Creek Gallery and Traveler Books . On May 21, 2013, the Vail Town Council appealed (called-up) the approval of DRB130090 by the Design Review Board. STAFF RECOMMENDATION: Staff recommends the Vail Town Council review the Design Review application for the Gore Creek Gallery and Traveler Books for compliance with the Vail Village Design Consideratons (VVDC) and provide direction to staff and the Design Review Board on the interpretation and application of the VVDC. ATTACHMENTS: Staff memorandum Staff Power Point 6/18/2013 TO: Vail Town Council FROM: Community Development Department DATE: June 18, 2013 SUBJECT: An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the Design Review Board’s approval, with conditions, of a design review application for minor exterior alterations to expand storefront windows at 158 Gore Creek Drive Unit 132/Lots A, B, and C, Block 5C, Vail Village Filing 1, and setting forth details in regard thereto. (DRB130090) Appellant: Vail Town Council Planner: Joe Batcheller ________________________________________________________________________________ I. SUBJECT PROPERTY The subject property is located at 158 Gore Creek Drive Unit 132/Lots A, B, and C, Block 5C, Vail Village Filing 1. II. VAIL TOWN COUNCIL JURISDICTION Pursuant to Section 12-3-3C-1, Appeal of Planning and Environmental Commission Decisions; Authority, Vail Town Code, the Town Council shall have the authority to hear and decide appeals from any decision, determination or interpretation by any the Design Review Board with respect to the provisions of the Title 12, Zoning Regulations, Vail Town Code. III. PROCEDURAL CRITERIA FOR APPEALS Pursuant to Sections 12-3-3C-2 and 12-3-3C-3, Appeal of Design Review Board Decisions; Initiation and Procedures, Vail Town Code, there are three basic procedural criteria for an appeal: A) Standing of the Appellants Pursuant to Section 12-3-3, Appeals, Vail Town Code, the appellant, the Vail Town Council has standing as an aggrieved or adversely affected party to appeal the Design Review Board’s May 1, 2013, decision. B) Adequacy of the Notice of the Appeal A copy of the Public Notice of the Vail Town Council, June 18, 2013, Public Hearing was sent to the local newspaper on May 31, 2013, pursuant to Section 12-3-3C-3, Procedures, Vail Town Code. 6/18/2013 C) Timeliness of the Notice of Appeal The Administrative Section of the Town’s Zoning Code (12-3-3C-3, Procedures) requires appeals to be filed in twenty (20) days or less. On May 21, 2013, the appellant, Vail Town Council, filed an appeal (called-up) of the Design Review Board’s May 1, 2013, decision in accordance with Section 12-3-3, Appeals, Vail Town Code. IV. SUMMARY The question to be answered by the Vail Town Council regarding this appeal is: Were the Vail Village Master Plan and the Vail Village Design Considerations properly applied in the decision to allow exterior alterations to the storefront at 158 Gore Creek Drive Unit 132? Pursuant to Section 12-3-3, Appeals, Vail Town Code, the Vail Town Council shall uphold, uphold with modifications, or overturn the Design Review Board’s May 1, 2013, decision. What follows in this memorandum is the background, context, and applicable documents related to the Design Review Board’s decision. Attachments include: A. A vicinity map of the property in question B. The plans approved by the Design Review Board dated May 1, 2013 C. Photo documentation of the character of Vail Village storefronts V. BACKGROUND On April 8, 2013, The Town of Vail’s Community Development Department received an application to expand the storefront at 158 Gore Creek Drive Unit 132 (Gore Creek Gallery and Traveler Books). The proposal would eliminate the 21 inch knee wall and expand all windows to grade. On May 1, 2013, the Design Review Board unanimously approved (4-0-0, Gillette absent), with one condition, an application to expand the storefront windows of Gore Creek Gallery and Traveler Books. The condition was as follows: “The applicant shall include a horizontal element 18 to 24 inches above grade to all proposed windows to break up the vertical expanse of the window panes and meet the intent of the Vail Village Urban Design Guide Plan. The horizontal element shall match the color, dimensions, and material of the proposed window trim.” The Vail Town Council (appellant) filed an appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code of the Design Review Board’s May 1, 2013, conditional approval of an application for exterior alterations to the storefront located at 158 Gore Creek Drive Unit 132. Members of the Vail Town Council, in conjunction with the discussion to review the Design Review Board’s approval, highlight concerns with this particular approval and condition, and its potential for compromising the character of Vail Village. Town of Vail Page 2 6/18/2013 VI. NATURE OF THE APPEAL The primary issue concerning the decision to allow exterior alterations to the storefront at 158 Gore Creek Drive Unit 132 is whether or not windows that span floor to ceiling are appropriate for Vail Village based upon the Vail Village Urban Design Guide Plan. Staff believes storefronts of this nature are inconsistent with the Vail Village Master Plan and the Vail Village Urban Design Guide Plan. Abandoning the tradition of storefronts with knee walls (18 to 24 inch base walls) will foster a new, intractable direction for the character of the Vail Village, and a departure from governing documents. For these reasons, staff feels this particular the decision to allow exterior alterations to the storefront at 158 Gore Creek Drive Unit 132 warrants a second look. In the following section (VII), staff has included portions of the Vail Village Master Plan and the Vail Village Urban Design Guide Plan that address aspects of the proposed storefront in question. The Vail Village Master Plan and the Vail Village Urban Design Guide Plan are two significant governing documents for Vail Village that aim to preserve the Village’s character and prevent its degradation. Coincidentally, the Town of Vail is in the process of analyzing and possibly updating these two documents as part of the Vail Village Character Preservation Study. VII. APPLICABLE DOCUMENTS VAIL VILLAGE MASTER PLAN GOAL #1 ENCOURAGE HIGH QUALITY, REDEVELOPMENT WHILE PRESERVING UNIQUE ARCHITECTURAL SCALE OF THE VILLAGE IN ORDER TO SUSTAIN ITS SENSE OF COMMUNITY AND IDENTITY. Objective 1.1: Implement a consistent development review process to reinforce the character of the Village. Policy 1.1.1: Development and improvement projects approved in the Village shall be consistent with the goals, objectives, policies and design considerations as outlined in the Vail Village Master Plan and Urban Design Guide Plan. Objective 1.4: Recognize the “historic” importance of the architecture, structures, landmarks, plazas and features in preserving the character of Vail Village. Policy 1.4.1: The historical importance of structures, landmarks, plazas and other similar features shall be taken into consideration in the development review process. Town of Vail Page 3 6/18/2013 Town of Vail Page 4 VAIL VILLAGE DESIGN CONSIDERATIONS INTRODUCTION Background These Design Considerations are an integral part of the Vail Village Urban Design Plan. The Plan as a whole is the culmination of many month’s effort by residents, merchants, Town staff, and consultants to develop a mechanism to manage physical change in the Village. It is an attempt to identify aspects of the physical character of the Village and to assure as far as possible that future changes will be consistent with the established character, and will make positive contributions to the quality of life. Vail was originally conceived as a mountain resort in the pattern of quaint European alpine village. It remains fairly faithful to that image today, because of the commitment of its early founders to that concept. However, recent rapid growth, both in size and popularity, has introduced new pressures for development, which many feel threaten the unique qualities from which that success has been derived. There are rapidly increasing land values and resulting pressures to expand existing buildings, infill parcels, and even totally redevelop parcels less than 15 years old. This pressure for growth has brought with it the potential for significant change. New materials, new architectural styles, the premium on land usage, and sheer numbers of people and cars all have potentially major impacts on the character and function of Vail. That is not to imply that all growth and change in Vail is negative. There are many areas that are underdeveloped. The actual area of Vail that gives it its unique character is but a small area of the Village. There are definitely opportunities to extend the character of the Core beyond its current limits. These Design Considerations, and the Urban Design Plan as a whole, are intended to guide growth and change in ways that will enhance and preserve the essential qualities of Vail Village. This character, while inspired to a degree by European models, has evolved into a distinctly local interpretation. Any standards, in the end, must be based upon Vail’s own unique characteristics, and potential now. To preserve this character, care must be taken to avoid both new architectural prototypes, and historical ones, local or foreign, which do not share the same design vocabulary. These Design Considerations are a recognition that there is a distinctive design character to the Village and that this character is important to preserve. The design consideraTions The characteristics identified herein, are first of all, descriptions of the primary form-giving physical features of the Village. They are not exhaustive. They are a description of those key elements without which the image of Vail would be noticeably different. They are divided into two major categories: urBan design consideraTions General, large-scale land use planning issues, as well as form considerations which affect more 6/18/2013 Town of Vail Page 5 than one property (or even whole areas). These considerations are primarily the purview of the Planning and Environmental Commission. This Commission also has review responsibilities for additional zoning code compliance such as density control, parking, etc. archiTecTure/Landscape consideraTions Detail, details, style and overall appropriateness of a design for a given site. These considerations are reviewed primarily by the Design Review Board (DRB). Secondly, the design considerations are intended to serve as guideline design parameters. They are not seen as rigid rules, or “cookbook design elements” to bring about a homogeneous appearance in Vail. Rather, they are a statement of interpretation, subscribed to by the Town Planning/Environmental Commission and Review Board, as to the present physical character and objectives of the Village. They are intended to enable the Town staff and citizen review boards to more clearly communicate to property owners planning and design objectives, and allow property owners in town to respond in general conformance or to clearly demonstrate why departures are warranted. Finally, these guidelines are intended to help influence the form and design of buildings, not to establish minimum building volumes. Often more than one criteria applies to a given situation e.g. Building Height, Enclosure, Views and Sun/Shade - all are concerns applicable to building height and massing - and they may be mutually conflicting if judged on equal terms. It is the role of the review boards, together with the applicant, to determine the relative importance of each consideration for a given situation. They then must apply those considerations to assure that a balance is achieved between the rights of the public and private sectors. ARCHITECTURE/LANDSCAPE CONSIDERATIONS Facades Transparency Pedestrian scale is created in many ways, but a major factor is the openness, attractiveness, and generally public character of the ground floor facade of adjacent buildings. Transparent storefronts are “people attractors,” opaque or solid walls are more private, imply “do not approach.” On pedestrian-oriented streets such as in the Village, ground floor commercial facades are proportionately more transparent than upper floors. Upper floors are typically more residential, private and thus less open. 6/18/2013 Town of Vail Page 6 As a measure of transparency, the most characteristic and successful ground floor facades range from 55% to 70% of the total length of the commercial facade. Upper floors are often the converse 30%-45% transparent. Examples of transparency (lineal feet of glass to lineal feet of facade) on ground level: • Pepi’s Sports: 71% • The Lodge: 66% • Golden Peak House: 62% • Covered Bridge Bldg: 58% • Gorsuch Building: 51% • Gasthof Gramshammer: 48% • Casino Building: 30% WindoWs In addition to the general degree of transparency, window details are an important source of pedestrian scale-giving elements. The size and shape of windows are often a response to the function of the street adjacent. For close-up, casual pedestrian viewing windows are typically sized to human-sized dimensions and characteristics of human vision. Large glass-wall storefronts suggest uninterrupted viewing, as from a moving car. The sense of intimate pedestrian scale is diminished. Ground floor display windows are typically raised slightly 18 inches and do not extend much over 8 feet above the walkway level. Ground floors which are noticeably above or below grade are exceptions. The articulation of the window itself is still another element in giving pedestrian scale (human-related dimensions). Glass areas are usually subdivided to express individual window elements - and are further subdivided 6/18/2013 Should the Vail Town Council choose to uphold the determination of the Town of Vail Design Review Board, the following statement is recommended: “The Vail Town Council finds as follows: The Vail Village Master Plan and the Vail Village Design Considerations were properly applied in regard to the approval on May 1, 2013, of the proposed exterior alterations to the storefront located at 158 Gore Creek Drive Unit 132/Lots A, B, and C, Block 5C, Vail Village Filing 1. Additionally, staff shall prepare amendments to the Vail Village Design Considerations for review and approval to more accurately reflect the desired outcome Town of Vail Page 7 by mullions into small panes - which is responsible for much of the old-world charm of the Village. Similarly, windows are most often clustered in banks, juxtaposed with plain wall surfaces to give a pleasing rhythm. Horizontal repetition of single window elements, especially over long distances, should be avoided. Large single pane windows occur in the Village, and provide some contrast, as long as they are generally consistent in form with other windows. Long continuous glass is out of character. Bay, bow and box windows are common window details, which further variety and massing to facades - and are encouraged. Reflective glass, plastic panes, and aluminum or other metal frames are not consistent in the Village and should be avoided. Metal- clad or plastic clad wood frames, having the appearance of painted wood have been used successfully and are acceptable. VIII. REQUIRED ACTION Pursuant to Section 12-3-3, Appeals, Vail Town Code, the Vail Town Council shall uphold, uphold with modifications, or overturn the Design Review Board’s May 1, 2013, decision. 6/18/2013 for storefront window designs. Therefore, the Vail Town Council upholds the decision to allow exterior alterations to the storefront at 158 Gore Creek Drive Unit 132. This decision is final, subject only to judicial review as provided by law.” Should the Vail Town Council choose to uphold with modifications the determination of the Town of Vail Design Review Board, the following statement is recommended: “The Vail Town Council finds as follows: The Vail Village Master Plan and the Vail Village Design Considerations were not properly applied in regard to the approval on May 1, 2013, of the proposed exterior alterations to the storefront located at 158 Gore Creek Drive Unit 132/Lots A, B, and C, Block 5C, Vail Village Filing 1. The Vail Town Council, however, upholds the decision to allow exterior alterations to the storefront at 158 Gore Creek Drive Unit 132 with one modification—the existing knee wall shall remain. This decision is final, subject only to judicial review as provided by law.” Should the Vail Town Council choose to overturn the determination of the Town of Vail Design Review Board, the following statement is recommended: “The Vail Town Council finds as follows: The Vail Village Master Plan and the Vail Village Design Considerations were not properly applied in regard to the approval on May 1, 2013, of the proposed exterior alterations to the storefront located at 158 Gore Creek Drive Unit 132/Lots A, B, and C, Block 5C, Vail Village Filing 1. Allowing storefront windows to span downward to grade would set precedence for a new interpretation of the Vail Village Design Considerations that Town Council feels is a deviation from the character of Vail Village, which has been established and needs preservation. Therefore, the Vail Town Council overturns the decision to allow exterior alterations to the storefront at 158 Gore Creek Drive Unit 132. This decision is final, subject only to judicial review as provided by law.” IX. ATTACHMENTS A. A vicinity map of the property in question B. The plans approved by the Design Review Board dated May 1, 2013 C. Photo documentation of the character of Vail Village storefronts Town of Vail Page 8 6/18/2013 6/18/2013 6/18/2013 Vail Village Storefronts COMMUNITY DEVELOPMENT DEPARTMENT June 18, 2013 Joe Batcheller Town Planner Office: 1.970.479.2440 JBatcheller@vailgov.com Attachment C 6/18/2013 Transparency Ground Floor Windows 2 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Transparency Pedestrian Scale 3 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Pedestrian Scale 4 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Pedestrian Scale 5 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Mullions 6 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Horizontal Repetition 7 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Clustering Windows 8 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Continuous Glass 9 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Lodge at Vail Storefronts 10 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Lodge at Vail Storefronts 11 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Lodge at Vail Storefronts 12 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Vail Village Storefronts COMMUNITY DEVELOPMENT DEPARTMENT June 18, 2013 Joe Batcheller Town Planner Office: 1.970.479.2440 JBatcheller@vailgov.com Attachment C 6/18/2013 Transparency Ground Floor Windows 2 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Transparency Pedestrian Scale 3 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Pedestrian Scale 4 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Pedestrian Scale 5 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Mullions 6 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Horizontal Repetition 7 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Clustering Windows 8 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Windows Continuous Glass 9 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Lodge at Vail Storefronts 10 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Lodge at Vail Storefronts 11 Town of Vail | Community Development Department | 06/18/13 6/18/2013 Lodge at Vail Storefronts 12 Town of Vail | Community Development Department | 06/18/13 6/18/2013 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: An update regarding recent legislation concerning the regulation of the retail sale of recreational marijuana, which is now referred to as "adult use marijuana." House Bill 13-1317 ("HB 1317") sets forth the licensing structure, House Bill 13-1318 ("HB 1318") addresses taxation and Senate Bill 13-283 ("SB 283") addresses miscellaneous provisions in the Colorado Revised Statutes concerning marijuana use. PRESENTER(S): Matt Mire ACTION REQUESTED OF COUNCIL: Discuss and provide direction. BACKGROUND: By October 1, 2013, all local jurisdictions are required to either prohibit retail marijuana sales or adopt an ordinance identifying the entity within the Town that will be responsible for processing applications. (SEE ATTACHED MEMORANDUM). ATTACHMENTS: Marijuana Legislation Update Memorandum 6/18/2013 To: Town Council From: Matt Mire Date: June 18, 2013 Subject: Retail Sale of Recreational Marijuana Legislation Update This memorandum serves as an update regarding recent legislation concerning the regulation of the retail sale of recreational marijuana, which is now referred to as "adult use marijuana." House Bill 13-1317 ("HB 1317") sets forth the licensing structure, House Bill 13-1318 ("HB 1318") addresses taxation and Senate Bill 13-283 ("SB 283") addresses miscellaneous provisions in the Colorado Revised Statutes concerning marijuana use. By October 1, 2013, all local jurisdictions are required to either prohibit retail marijuana sales or adopt an ordinance identifying the entity within the Town that will be responsible for processing applications. If the DOR fails to adopt regulations by July 1, 2013 or fails to process and issue licenses as dictated in HB 1317, applicants are entitled to apply directly to the Town for licensure unless the Town has adopted an ordinance prohibiting the retail sale of marijuana. I. House Bill 1317 A. Applications for Retail Marijuana Establishments HB 1317 sets forth a staggered application timeline for Retail Marijuana Establishments ("RMEs"). Beginning October 1, 2013, any person who is operating or holds, in good standing, a licensed medical marijuana center, optional premises cultivation license or a licensed marijuana-infused products business, has a pending application for one of these licenses, may apply for an RME license. C.R.S. § 12-43.3- 104(1)(a)(I). Applications for RMEs can either replace the applicant's current medical marijuana license or be in addition to the medical marijuana license. C.R.S. § 12-43.3- 104(1)(a)(II). Importantly, under no circumstances will any RME license be issued or effective until January 1, 2014. C.R.S. § 12-43.3-104(1)(a)(VI). An applicant that currently holds a medical marijuana license must indicate whether it will surrender the current medical marijuana license or retain the license in addition to the RME license. C.R.S. § 12-43.3-104(1)(a)(II). If the applicant intends to surrender the medical marijuana license, the applicant may continue to operate under the medical marijuana license for the duration of the license's effectiveness or until the 6/18/2013 Town of Vail Page 2 RME license is granted, in which case the applicant has 14 days to surrender the medical marijuana license. C.R.S. § 12-43.3-104(1)(a)(III). If the RME license is granted and the applicant is surrenders a medical marijuana license, all medical marijuana plants and inventory shall become adult-use marijuana plants and inventory on the date that the RME license is approved. Id. If the applicant intends to maintain both the medical marijuana and RME licenses, the applicant may seek to have both establishments at the same location if the local jurisdiction so allows. C.R.S. § 12-43.3-104(1)(a)(IV). Notwithstanding the foregoing, an applicant that intends to maintain both licenses must maintain physical separation between the two businesses or only sell medical marijuana to persons 21 years of age or older. C.R.S. § 12-43.3-104(1)(a)(V). After January 1, 2014, persons who did not previously have a medical marijuana license may submit their notice of intent to apply for a RME license pursuant to Article 43.3 of Title 12 of the Colorado Revised Statutes. C.R.S. § 12-43.3-104(1)(b)(I)(A). The State Licensing Authority, which is designated by HB 1317 as the Colorado Department of Revenue ("DOR"), must establish a form for the notice and establish an application fee. Id. Effective July 1, 2014, applications for RME licensure open to all. C.R.S. § 12- 43.3-104(1)(b)(II). A license issued pursuant to an application received after July 1, 2014 will not be effective until after October 1, 2014. Applicants who file a notice of intent to apply for RME licensure after January 1, 2014 but before July 1, 2014, are given priority over those applicants that file after July 1, 2014. C.R.S. § 12-43.3- 104(2)(b)(II)(a). Upon receipt of an RME application, the DOR must act upon the application no sooner than 45 days and no later than 90 days after the date of the application. C.R.S. § 12-43.3-104(2)(b)(I). Applications for RME licenses shall be $500 if the applicant currently holds a medical marijuana business license or $5,000 for applicants that do not currently hold medical marijuana business licenses. C.R.S. § 12-43.4-501. In either case, one half of the application fee is transferred to the local jurisdiction where the retail operation is proposed, provided the local jurisdiction has not prohibited the retail sale of marijuana. Id. The other half of the application fee must be transferred to the marijuana cash fund. Id. Local governments may adopt and impose operating fees in an amount determined by their governing bodies for RMEs located within their jurisdictions. C.R.S. § 12-43.4- 501(3). B. Types of Licenses House Bill 1317 creates the following classes of RME licenses: retail marijuana store licenses; retail marijuana cultivation facility licenses; retail marijuana products manufacturing licenses; and retail marijuana testing facility licenses. Each class of license is discussed below. Retail Marijuana Store License 6/18/2013 Town of Vail Page 3 A retail marijuana store license is issued to persons selling marijuana or marijuana products at retail.1 C.R.S. § 12-43.3-402(1)(a). On or before September 30, 2014, retail marijuana stores may only sell marijuana grown in their own licensed cultivation facilities. C.R.S. § 12-43.3-402(1)(c). After September 30, 2014, a store may purchase inventory from a separate licensed retail marijuana cultivation facility. C.R.S. § 12-43.3-402(1)(b). After September 30, 2014, a retail marijuana store may purchase not more than 30% of its on-hand inventory of marijuana from another licensed RME (such as another retail marijuana store) that is not owned by the retail marijuana store. C.R.S. § 12-43.3- 402(1)(c)(II). Similarly, no retail marijuana store or other cultivation facility may sell more than 30% of its total on-hand inventory to another Colorado licensed RME. Id. However, the DOR may grant a temporary waiver if the applicant suffers a catastrophic event for a period not to exceed 90 days. Id. A retail marijuana store cannot accept any marijuana from a retail marijuana cultivation facility unless provided with evidence that all applicable excise taxes have been paid. C.R.S. § 12-43.3-402(1)(d). Further, stores are responsible for tracking all marijuana and products from the point of transfer to the store to the point of sale. C.R.S. § 12-43.3-402(1)(e). Prior to initiating a sale, an employee must verify that the purchaser has valid identification showing that he or she is 21 years of age or older. C.R.S. § 12-43.3- 402(3)(b). A store may not sell more than a ¼ ounce of marijuana and no more than ¼ ounce equivalent of marijuana products during a single transaction to a person who does not have a valid identification showing that the person is a Colorado resident. C.R.S. § 12-43.3-402(3)(a). Retail marijuana stores may only sell marijuana, marijuana products, marijuana accessories, non-consumable products such as apparel, and marijuana related products such as childproof packaging containers. C.R.S. § 12-43.3-402(7)(a). Stores may not sell or give away any consumable product, including cigarettes or alcohol, or edible products that do not contain marijuana, such as sodas, candies or baked goods. Id. Stores may not sell any marijuana or marijuana products that contain nicotine or alcohol if the sale of the alcohol would require liquor licensure pursuant to Colorado law. C.R.S. § 12-43.3-402(7)(b). Retail marijuana stores may not sell retail marijuana or products over the internet or deliver such products to a person not physically present. C.R.S. § 12-43.3-402(7)(c). Stores may use automatic dispensing machines. C.R.S. § 12-43.3-402(8). No marijuana may be consumed on the premises. C.R.S. § 12-43.3-402(9). Retail Marijuana Cultivation Facility License 1 Retail marijuana products are defined as "concentrated marijuana products and marijuana products that are comprised of marijuana and other ingredients and are intended for use or consumption such as, but not limited to, edible products, ointments, and tinctures." See C.R.S. § 12-43.4-1.3(18); Colo. Const. art. XVIII § 16(2)(k). 6/18/2013 Town of Vail Page 4 Retail marijuana cultivation facility licenses may be issued to persons who cultivate marijuana for sale and distribution to licensed retail marijuana stores, retail marijuana products manufacturing licensees or other retail marijuana cultivation facilities. C.R.S. § 12-43.3-403(1). On or before September 30, 2014, a cultivation license may be issued only to persons who hold retail marijuana store licenses or retail marijuana products manufacturing licenses. C.R.S. § 12-43.3-403(2)(a). Similarly, prior to September 30, 2014, a cultivation licensee may only transfer marijuana to its affiliated retail marijuana store or retail marijuana products manufacturer, or another affiliated cultivation facility. C.R.S. § 12-43.3-403(2)(b). Under no circumstances may a cultivation facility sell more than 30% of the marijuana it cultivates to another cultivation facility or to a retail marijuana store or products manufacturer not owned by the owner of the cultivation facility. C.R.S. § 12-43.3-403(2)(c).2 Cultivation licenses may be combined in a common area to grow and cultivate marijuana to provide marijuana to more than one licensed retail marijuana store or products manufacturer, if the holder of the cultivation license is also a common owner of each licensed retail marijuana store or licensed retail marijuana products manufacturer to which the marijuana is provided. C.R.S. § 12-43.3-403(2)(d). Cultivation facilities must remit excise tax under C.R.S. § 39-28-101, et seq. C.R.S. § 12-43.3-403(3). Prior to the delivery of any sold marijuana, the cultivation facility must provide evidence that it paid the applicable excise tax. C.R.S. § 12-43.3- 403(4). A cultivation facility must track the marijuana it cultivates from seed or immature plant to wholesale purchase. Id. No marijuana may be consumed on the premises. C.R.S. § 12-43.3-403(6). Retail Marijuana Products Manufacturing License A retail marijuana products manufacturing license may be issued to persons who manufacture concentrated marijuana products and marijuana products that are comprised of marijuana and other ingredients and are intended for consumption. C.R.S. § 12-43.4-404(1)(a). A products manufacturing licensee may cultivate its own marijuana if it obtains a cultivation license, or it may purchase marijuana from a cultivation facility. C.R.S. § 12-43.4-404(1)(b). However, before October 1, 2014, a products manufacturer that also has a cultivation license may not sell any of the marijuana that it cultivates except for the marijuana that is contained in its marijuana products. C.R.S. § 12-43.4-404(1)(c)(I). Retail marijuana products manufacturing licensees must track all marijuana from the point it is transferred or delivered from a cultivation facility to the point of transfer to a retail marijuana store. C.R.S. § 12-43.4-404(1)(b). Further, the products manufacturer may not accept any marijuana from any cultivation facility until evidence that any applicable excise tax has been paid by the cultivation facility. C.R.S. § 12- 43.4-404(1)(d). 2 The requirements of C.R.S. § 12-24.4-403(2) are repealed effective January 1, 2015. It appears that the General Assembly has attempted to limit cultivation facility sales during the initial startup of RMEs to ensure that the supply of marijuana does not exceed the demand required by retail marijuana stores. 6/18/2013 Town of Vail Page 5 Marijuana products must be prepared at a licensed premises that is used exclusively for the manufacture and preparation of marijuana or marijuana products and using equipment that is used exclusively for the manufacture and preparation of marijuana products. C.R.S. § 12-43.4-404(2). An exception to this rule exists if the local jurisdiction allows retail marijuana products manufacturing licensees to share the same premises as a medical marijuana-infused products manufacturing licensee, so long as a virtual or physical separation of inventory is maintained. Id. Products manufacturing licensees may not add marijuana to any food products that hold trademarks, unless the products manufacturer does not state or advertise to the consumer that the final marijuana product contains the trademarked food product. C.R.S. § 12-43.4-404(1)(e)(I). Products manufacturing licensees may not intentionally or knowingly label or package marijuana products in a manner that would cause a reasonable consumer confusion as to whether the product was a trademarked food product or in a manner that violates any federal trademark law. C.R.S. § 12-43.4- 404(1)(e)(II)-(III). An edible marijuana product may, but is not required to, list ingredients and compatibility with dietary practices. C.R.S. § 12-43.4-404(7). Finally, marijuana may not be consumed on the premises. C.R.S. § 12-43.4-404(5). Retail Marijuana Testing Facility License Retail marijuana testing facility licenses may be issued to a person who performs testing and research on marijuana. C.R.S. § 12-43.3-405(1). The scope of this license will be largely determined when the DOR issues regulations concerning the testing of marijuana. Dual Operations A person may operate a licensed medical marijuana center, an optional cultivation facility, a medical marijuana-infused products manufacturing facility and any RME at the same location if the local jurisdiction permits a dual operation. C.R.S. § 12- 43.4-401(2)(a). If permitted by the local jurisdiction, dual medical marijuana and retail marijuana stores must maintain separate licensed premises, including entrances and exits, inventory, point of sale operations and record keeping.3 C.R.S. § 12-43.4- 401(2)(b)(I). C. State and Local Licensing Procedures HB 1317 reiterates that any local jurisdiction may regulate the time, place, manner and number of RMEs, and may require a local license. C.R.S. § 12-43.4- 104(3). The local regulations must be at least as restrictive as HB 1317 and associated DOR regulations. C.R.S. § 12-43.4-309(1). Further, local jurisdictions may prohibit the operation of RMEs. Id.; C.R.S. § 12-43.4-104(3). 3 The DOR has been directed to promulgate regulations to address the situation where a dual medical and retail storefront sells only to persons 21 years of age or older. C.R.S. § 12-43.3- 401(2)(b)(II). Specifically, the DOR is to determine whether to allow single entrances and exits and virtual separation of the two facilities. Id. 6/18/2013 Town of Vail Page 6 The DOR has seven days after receipt of an RME application to provide a copy of the application to the local jurisdiction, unless the local jurisdiction has prohibited the operation of RMEs. C.R.S. § 12-43.4-301(1). The local government must then notify the state whether the application complies with the jurisdiction's time, place, manner and number of marijuana businesses regulations. Id. A local government may also impose a separate licensing requirement. Id. If the Town has a separate licensing requirement, the Town may schedule a public hearing on the application. C.R.S. § 12-43.4-302(1). Public notice of the hearing must be posted in a conspicuous place on the property and published in a newspaper of general circulation in the county where the premises are located not less than 10 days prior to the hearing. Id. Importantly, even if a local jurisdiction opts not to impose a separate licensing structure, the local jurisdiction may require public notice of the state application to be posted and published. C.R.S. § 12-43.4-301(2). Before the DOR issues a state license, the applicant must file with the DOR evidence of a corporate surety bond in the amount of $5,000. C.R.S. § 12-43.4-303(1). The bond must be conditioned on the applicant timely paying all sales and use taxes due to the state. Id. This bond must be renewed each time the applicant's license is renewed. C.R.S. § 12-43.4-301(3). A license applicant is prohibited from operating a RME without state and local approval, assuming the local government has opted to regulate. C.R.S. § 12-43.4- 304(1). If the applicant does not receive local jurisdiction approval within one (1) year from the date of the DOR's approval, the state license shall expire and may not be renewed. Id. The DOR may refuse or deny a license application, reinstatement or renewal for "good cause." C.R.S. § 12-43.4-305(1). "Good cause" means the licensee or applicant has violated, does not meet, or has failed to comply with any of the requirements of HB 1317; any special terms or conditions that were placed on a license pursuant to an order of the DOR or local licensing authority; or the licensed premises have been operated in a manner that adversely affects the public health or safety of the immediate neighborhood in which the establishment is located. Id. If the DOR denies a license, the applicant is entitled to a hearing on such denial pursuant to C.R.S. § 24-4-106. C.R.S. § 12-43.4-305(2). The denial must be in writing and provide notice of the grounds for the denial at least 15 days prior to the applicant's hearing date. D. General Licensing Requirements An applicant must notify the state licensing authority in writing of the name, address and date of birth of the owner, officer or manager before the new owner, officer or manager begins associating with the RME. C.R.S. § 12-43.4-309(3). Each owner, officer, manager or employee of an RME must pass a fingerprint-based criminal history record check and obtain a identification card before being associated with the RME operation. Id. The following persons are prohibited from being licensees: 6/18/2013 Town of Vail Page 7 1. Anyone not of good moral character (considering the factors in C.R.S. § 24-5-101); 2. Anyone with a history of its officers, directors, stockholders or owners who are not of good moral character; 3. Anyone financed in whole or in part by any other person whose criminal history reflects that he or she is not of good moral character and reputation satisfactory to the licensing authority; 4. Anyone under 21 years of age; 5. Anyone who fails to comply with any of the bonding or fee requirements of HB 1317; 6. Anyone who has discharged a sentence for conviction of a felony in the 5 years immediately preceding the application; 7. Anyone who has discharged a sentence for a conviction of a felony pursuant to any state or federal law regarding the possession, distribution, manufacturing, cultivation, or use of a controlled substance in the 10 years immediately preceding the application or five years from the effective date of HB 1317, whichever is longer, unless the felony conviction is based on a charge of possession or use of marijuana or marijuana concentrate that would not be a felony if the person were convicted of the offense on the date of the application; 8. Anyone who employs another person at a retail marijuana establishment who has not submitted fingerprints for a criminal history record check or whose criminal record history check reveals that the person is ineligible; 9. A sheriff, deputy sheriff, police officer, prosecuting attorney, or an officer or employee of the state licensing authority or a local licensing authority; 10. Anyone who seeks a license for a location that is currently licensed as a retail food establishment or wholesale food registrant; or 11. An owner who has not been a resident of Colorado for at least two years from the date of the application. C.R.S. § 12-43.3-306. When investigating and considering an applicant's criminal history, the state and/or local licensing authority must also consider information provided by the applicant such as evidence of rehabilitation, character references and educational achievements; particularly those items pertaining to the time between the applicant's last criminal conviction and the consideration of the application. C.R.S. § 12-43.3-306(2)(a). An application for a state RME license may not be approved if the application concerns a location that is the same or within 1,000 feet of a location for which, within the two years immediately preceding the date of the application, the DOR denied an application for the same class of license due to the nature of the use or other concern related to location. C.R.S. § 12-43.3-307(1)(a). Similarly, an applicant must establish that it has or will have possession of the premises by ownership or under a lease or other arrangement. C.R.S. § 12-43.3-307(1)(b). 6/18/2013 Town of Vail Page 8 A licensee must personally manage the premises or employ a manager, and the licensee must report the name of the manager to the state and local authorities. A licensee must report any change in manager to the state and local licensing authorities within seven days. C.R.S. § 12-43.4-309(11). All officers, managers and employees of an RME must be residents of Colorado upon the date of their license application. C.R.S. § 12-43.4-309(5). An RME owner must have been a resident of Colorado for at least two years prior to the date of the application. Id. RME licenses may be transferred only upon approval of the DOR and local licensing authority. C.R.S. § 12- 43.4-308(2). The local licensing authority may hold a new public hearing and the guidelines for initial licensure are applicable to the proposed transferee. Id. A licensee must possess and maintain possession of the premises for which the license is issued by ownership, lease, rental or other arrangement for possession at all times during the term of a license. C.R.S. § 12-43.4-309(7). A licensee may move a RME's permanent location to another place in Colorado if the state and local licensing authorities authorize the move. C.R.S. § 12-43.4-309(12). The license must be conspicuously placed in the licensed premises at all times. C.R.S. § 12-43.4-309(8). It is unlawful for any person to distribute marijuana or marijuana products using a mobile distribution center. C.R.S. § 12-43.4-901(4)(h). The DOR requires a complete disclosure of all persons having a direct or indirect financial interest in each RME license. C.R.S. § 12-43.4-312(1). A licensee must report all transfers or changes of financial interest to the state and local licensing authorities and receive prior approval. C.R.S. § 12-43.4-309(10). Reports must be filed with the licensing authorities prior to any transfers of capital stock of any corporation, regardless of its size. Id. E. License Renewals At least 90 days prior to the expiration of an existing license, the DOR will notify the licensee of the expiration by first class mail. C.R.S. § 12-43.4-310(1). The licensee may apply for renewal at least 30 days prior to the expiration date. Id. Upon receipt of a renewal application, the DOR must submit a copy of the application to the local licensing authority to determine whether the application complies with all local licensing requirements. Id. Notwithstanding the foregoing, the DOR may extend the expiration date of a license and accept a late application for renewal if the applicant has filed a timely renewal application with the local licensing authority. Id. Further, either the DOR or the local licensing authority may at their discretion, waive the 30-day renewal time requirement if reasonable grounds are stated. Id. A licensee whose license has been expired for not more than 90 days may file a late renewal application upon the payment of a non-refundable late application fee of $500 to the DOR. C.R.S. § 12-43.4-310(2). A late renewal applicant may continue to operate the RME until the DOR has taken final action to approve or deny the late renewal application, unless the DOR summarily suspends the license. Id. Finally, the DOR may, in its discretion revoke or elect not to renew a license if it determines that the 6/18/2013 Town of Vail Page 9 licensed premises have been inactive, without good cause, for at least one year. C.R.S. § 12-43.4-311. F. Powers and Duties of the State Licensing Authority The DOR has been granted a number of powers and duties under HB 1317. The primary responsibility of the DOR is to grant or refuse state licenses for the cultivation, manufacture, distribution, sale and testing of marijuana and marijuana products. C.R.S. § 12-43.4-202(2)(a). The DOR is further authorized to suspend, fine, restrict or revoke state licenses or issue fines for violations of the statute, after investigation and opportunity for a public hearing. Id.; see generally C.R.S. § 12-43.4-601(1). The DOR must maintain a seed-to-sale tracking system that tracks marijuana from either seed or immature plant stage until the marijuana or marijuana product is sold to a customer at a retail marijuana store. C.R.S. § 12-43.4-202(1). HB 1317 does not specify how the seed-to-sale tracking system should function. See C.R.S. § 12- 43.4-202(2)(b). In addition to the seed-to-sale tracking system, the DOR is charged with promulgating regulations on the following: 1. Procedures for the issuance, renewal, suspension and revocation of licenses to operate RMEs; 2. A schedule of application, licensing and renewal fees; 3. Qualifications for licensure, including a fingerprint-based criminal record check for all owners, officers, managers, contractors, employees and other support staff; 4. Establishing a marijuana and marijuana products independent testing and certification program to ensure, at a minimum, that products sold for human consumption do not contain contaminants that are injurious to the health, to ensure correct labeling and verify THC potency; 5. Security requirements including lighting, physical security, video and alarm requirements; 6. Requirements to prevent the sale or diversion of marijuana and products to persons under the age of 21; 7. Labeling requirements for marijuana and products; 8. Health and safety regulations and standards for the manufacture of marijuana products and the cultivation of marijuana; 9. Limitations on the display of marijuana and marijuana products; 10. Regulation of the storage of, warehouses for, and transportation of marijuana and products; 11. Sanitary requirements; 12. Recordkeeping requirements; 6/18/2013 Town of Vail Page 10 13. Reporting and transmittal requirements for monthly sales and excise tax payments; 14. Enforcement and penalties for regulatory violations; 15. Rules on inspections, investigations, searches, seizures, and forfeitures; 16. Development of identification cards for owners, officers, managers contractors, employees and other support staff of licensed entities; and 17. Signage, marketing and advertising regulations; C.R.S. § 12-43.4-202(3). The DOR must also create a statewide licensure class system for cultivation facilities. The classifications are to be based upon square footage of the facility; lights, lumens or wattage; lit canopy; the number of cultivating plants; and other reasonable metrics. C.R.S. § 12-43.4-202(4)(a). The DOR may establish limitations upon marijuana production based on the class of cultivation facilities, the previous months' sales, pending sales or other reasonable metrics. C.R.S. § 12-43.4-202(4)(b). When limiting marijuana production, the DOR must consider the total current and anticipated demand for adult-use marijuana in Colorado and attempt to minimize the market for unlawful marijuana. C.R.S. § 12-43.4-202(4)(b)(II). G. Disposition of Unauthorized Marijuana, Products and Related Materials A state or local agency is not required to cultivate or care for any retail marijuana or retail marijuana product seized from a licensee. C.R.S. § 12-43.4-602(3). In issuing a final agency decision concerning a disciplinary action, the DOR may specify that some or all of the licensee's marijuana or marijuana products are not "retail" product and therefore an illegal controlled substance. C.R.S. § 12-43.4-602(4). The order may further specify that the licensee has lost any interest in the marijuana or marijuana product. Id. Finally, the DOR may order the destruction of any marijuana or marijuana products, including any containers, equipment, supplies and other property incidental to the illegal contraband. Id. A licensee has 15 days from an order for destruction of property to file a petition to stay the agency action. C.R.S. § 12-43.4-602(5). H. Inspection of Books and Records Each RME licensee must keep a complete set of all records necessary to fully show the business transactions of the licensee. C.R.S. § 12-43.4-701(1). These records must be open at all times during business hours for inspection by the DOR. Id. The licensed premises, including storage areas where marijuana or marijuana products are stored, cultivated, sold, dispensed, or tested are also subject to inspection by the state or local jurisdiction during all business hours and other times of apparent activity. C.R.S. § 12-43.4-701(2). Licensees must maintain records for the current tax year and the 3 immediately preceding tax years. C.R.S. § 12-43.4-701(3). 6/18/2013 Town of Vail Page 11 I. Effectiveness and Sunset Review HB 1317 is now effective, but sunsets on July 1, 2016. Prior to the repeal of the measure, the Department of Regulatory Agencies is to conduct a sunset review to evaluate the continued existence of the program and determine its effectiveness. C.R.S. § 12-43.4-1001. II. House Bill 13-1318 HB 1318 imposes a sales and excise tax on the sale of adult-use marijuana, subject to statewide voter approval on November 5, 2013. C.R.S. § 39-28.8-401. HB 1318 also provides guidelines for the retention of books and records to document the payment of these taxes. C.R.S. § 39-28.8-303. For example, retail marijuana stores must keep business records showing that all marijuana is received from retail marijuana cultivation facilities. C.R.S. § 39-28.8-303(4). A. Special Sales Tax Beginning January 1, 2014, the bill imposes a tax of 10% on the sale of marijuana or marijuana products to a consumer by a retail marijuana store. C.R.S. § 39-28.8-202(1)(a). This 10% sales tax is in addition to the 2.9% state sales tax and any applicable local government sales tax. While the General Assembly approved an initial 10% special sales tax in HB 1318, the November ballot approval would authorize up to a 15% sales tax so that the special marijuana sales tax rate can be increased by the legislature in the future without further ballot approval. See C.R.S. § 39-28.8-202(2)(b). Each fiscal year, 15% of the gross marijuana sales tax revenues collected by the DOR will be apportioned to local governments that have retail marijuana stores within their jurisdictions. See C.R.S. § 39-28.8-203(1)(a)(I). Therefore, a municipality will be apportioned a percentage of the gross revenues on a pro rata basis. Id. By way of example, if the Town represented 10% of the total adult-use marijuana sales tax revenue collected by the DOR, the Town would receive 10% of the 15% local government portion of the gross sales tax revenue. Id. Notably, counties will receive the "local" portion of sales tax revenue when retail marijuana stores are located in unincorporated areas. Id. Distribution of the local government portion of the sales tax will be paid monthly, no later than the 15th. C.R.S. § 39-28.8-203(1)(a)(III). Importantly, the special sales tax does not prevent local governments from imposing, levying and collecting any other fee or tax upon the retail sale of marijuana or marijuana products or upon the occupation or privilege of selling marijuana products. See C.R.S. § 39-28.8- 203(1)(a)(VI). However, any such additional local sales tax must be self-collected by the local government. Id. B. Excise Tax Beginning January 1, 2014, a 15% excise tax will be imposed on the first sale or transfer of unprocessed marijuana by a cultivation facility. C.R.S. § 39-28.8-302(1)(a). The excise tax is in addition to the sales tax imposed by C.R.S. § 39-28.8-203. Id. The excise tax will be imposed when the cultivation facility first sells or transfers the 6/18/2013 Town of Vail Page 12 marijuana to a retail marijuana product manufacturing facility, a retail marijuana store or another retail marijuana cultivation facility. Id. The excise tax is not imposed on the sale or transfer of unprocessed marijuana by a cultivation facility to medical marijuana centers. C.R.S. § 39-28.8-302(2). III. Senate Bill 13-283 SB 283 addresses miscellaneous issues relating to marijuana sales and cultivation. Most importantly, SB 283 prohibits a person from knowingly using or consuming marijuana or possessing an open container while in the passenger area of a motor vehicle that is on a public highway or right-of-way. C.R.S. § 42-4-1305.5(2)(a). An "open marijuana container" is defined as a receptacle or marijuana accessory that contains any amount of marijuana and that is: (1) open or has a broken seal; (2) the contents of which are partially removed; or (3) there is evidence that marijuana has been consumed within the vehicle. C.R.S. § 42-4-1305.5(1)(c). The open container law does not apply to back seat passengers when: (1) the vehicle is designed, maintained or used primarily for the transportation of persons for compensation; (2) the back seat passenger is in the living quarters of a house coach, house trailer, motor home or trailer coach; (3) the possession is in the area behind the last upright seat of a vehicle not equipped with a trunk; or (4) the possession is in an area not normally occupied by the driver or a passenger in a vehicle that is not equipped with a trunk. C.R.S. § 42-4- 1305.5(2)(b). Notably, SB 283 recognizes that home rule municipalities may adopt ordinances on open containers that are no less restrictive than state law. C.R.S. § 42- 4-1305.5(3). SB 283 also provides that: 1. Local governments may prohibit the use of flammable gases in home marijuana cultivation. C.R.S. § 9-7-113. 2. Contracts pertaining to lawful activities authorized under Amendment 64, Article 43.4 of Title 12, C.R.S., and all associated regulations are not void or voidable as against public policy. C.R.S. § 13-22-601. 3. Marijuana accessories are excluded from the definition of "drug paraphernalia." C.R.S. § 18-18-426(2). 4. Marijuana smoke is included within the Colorado Clean Indoor Air Act prohibition on smoking in public places. C.R.S. § 25-14-203(16). 5. Expenditures on marijuana that would otherwise be eligible for federal income tax deductions are not eligible, because marijuana is a controlled substance under federal law. See C.R.S. §§ 39-22-104; 39-22-304. 6. The medical marijuana license cash fund is converted to the "Marijuana Cash Fund," and directing all license fees and taxes relating not distributed to local governments to be deposited into such fund. C.R.S. § 12- 43.3-501. 6/18/2013 Town of Vail Page 13 6/18/2013 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the Town of Vail Planning and Environmental Commission's approval, with conditions, of a development review application for the review of a variance from Section 12-7B-15, Site Coverage, Vail Town Code, pursuant to Chapter 12-17 Variances, Vail Town Code, to allow for the review of a major exterior alteration or modification, pursuant to Section 12-7B-7, Exterior Alterations and Modification, Vail Town Code, to allow for the construction of additions, located at 225 Wall Street/Lot B, Block 5C, Vail Village Filing 1, and setting forth details in regard thereto. PRESENTER(S): Warren Campbell ACTION REQUESTED OF COUNCIL: The Vail Town Council is asked to table this item to the July 2, 2013, public hearing, without discussion. 6/18/2013 VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: Adjournment (8:40 p.m.) 6/18/2013 Transparency J,fDwfJ�I �JJ1 rer j% t n OURT050 — _ �+� �� ►ors. r ono .f ,fl � TOWN OF VAILA Town of Vail Community Development Department 06/18/13 2 Transparency NEW r~ � w - 4 w 0-4.14, '] TOWN OF VAIL � Town of Vail Community Development Department 06/18/13 3 1111 �� s iz 6/18/2013 TOWN OF VAIL, Town of • Development Depa 16 4 Windows y'r 4 F 0 S i ■ a�4 * Tie litf 6/18/2013 TOWN OF VAIL Town of Vail Community Development Department 06/18/13 5 Windows J'AilflDfi�; OEM- WSS�'HAL ......................................... � F lud I yy dr • TOWN OF , Town of Vail Community Development Department 06/18/13 • Windows - raj 6/18/2013 TOWN OF VAIL Town of Vail Community Development Department 06/18/13 7 Windows Ing o-A,�o TOWN OF VAIL � Town of Vail Community Development Department 06/18/13 8 Windows r, a 6/18/2013 TOWN F ' Town of Vail Community Development Department 06/18/13 9 Lodge at MM JF 6/18/2013 TOWN OF VAIL,)'- Town of • Development Depa 1610 Lodge at lie TOWN OF VAIL Town of • Development Depa 16 Lodge at k -. ,' } --_ Y.'_` _ ate•---- `— a t. t a c - 4 Town of • Development Depa 16 Meryl Jacobs From: Pam Brandmeyer Sent: Tuesday,June 18, 2013 11:11 AM To: George Ruther; Matt Mire Cc: Meryl Jacobs Subject: FW: proposed storefront Collective council e-mail. . . From: brad maxwell [mailto:bamaxwell@)Iive.comj M Sent:Tuesday, June 18, 2013 10:30 AM To: Council Dist List; dominic(&mpgvail.com Subject: proposed storefront Dear Town Council Members: I am writing to offer my support of the application made by John Keck to improve the store front of the Gore Creek Gallery space in the Lodge at Vail building. We are under contract to purchase this retail space from John in July and we believe the updated store front is beneficial to this retail location and enhances the appearance and potential success of the location for retail. The need for storefront visibility,transparency, and openness is key to the success of any retail use in this location. We plan to open our Rocky Mountain Chocolate Factory store in this location and believe our store will add to the vitality of this end of the Vail Village. We appreciate your support. Brad Maxwell 970-376-3147 1 TOWN OF V�I�L VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: An update regarding recent legislation concerning the regulation of the retail sale of recreational marijuana, which is now referred to as "adult use marijuana." House Bill 13-1317 ("HB 1317") sets forth the licensing structure, House Bill 13-1318 ("HB 1318") addresses taxation and Senate Bill 13-283 ("SB 283') addresses miscellaneous provisions in the Colorado Revised Statutes concerning marijuana use. PRESENTER(S): Matt Mire ACTION REQUESTED OF COUNCIL: Discuss and provide direction. BACKGROUND: By October 1, 2013, all local jurisdictions are required to either prohibit retail marijuana sales or adopt an ordinance identifying the entity within the Town that will be responsible for processing applications. (SEE ATTACHED MEMORANDUM). ATTACHMENTS: Marijuana Legislation Update Memorandum 6/18/2013 0 TOWN OF VAIL ) Memorandum To: Town Council From: Matt Mire Date: June 18, 2013 Subject: Retail Sale of Recreational Marijuana Legislation Update This memorandum serves as an update regarding recent legislation concerning the regulation of the retail sale of recreational marijuana, which is now referred to as "adult use marijuana." House Bill 13-1317 ("HB 1317") sets forth the licensing structure, House Bill 13-1318 ("HB 1318") addresses taxation and Senate Bill 13-283 ("SB 283") addresses miscellaneous provisions in the Colorado Revised Statutes concerning marijuana use. By October 1, 2013, all local jurisdictions are required to either prohibit retail marijuana sales or adopt an ordinance identifying the entity within the Town that will be responsible for processing applications. If the DOR fails to adopt regulations by July 1, 2013 or fails to process and issue licenses as dictated in HB 1317, applicants are entitled to apply directly to the Town for licensure unless the Town has adopted an ordinance prohibiting the retail sale of marijuana. I. House Bill 1317 A. Applications for Retail Marijuana Establishments HB 1317 sets forth a staggered application timeline for Retail Marijuana Establishments ("RMEs"). Beginning October 1, 2013, any person who is operating or holds, in good standing, a licensed medical marijuana center, optional premises cultivation license or a licensed marijuana-infused products business, has a pending application for one of these licenses, may apply for an RME license. C.R.S. § 12-43.3- 104(1)(a)(1). Applications for RMEs can either replace the applicant's current medical marijuana license or be in addition to the medical marijuana license. C.R.S. § 12-43.3- 104(1)(a)(11). Importantly, under no circumstances will any RME license be issued or effective until January 1, 2014. C.R.S. § 12-43.3-104(1)(a)(VI). An applicant that currently holds a medical marijuana license must indicate whether it will surrender the current medical marijuana license or retain the license in addition to the RME license. C.R.S. § 12-43.3-104(1)(a)(11). If the applicant intends to surrender the medical marijuana license, the applicant may continue to operate under the medical marijuana license for the duration of the license's effectiveness or until the 6/18/2013 RME license is granted, in which case the applicant has 14 days to surrender the medical marijuana license. C.R.S. § 12-43.3-104(1)(a)(111). If the RME license is granted and the applicant is surrenders a medical marijuana license, all medical marijuana plants and inventory shall become adult-use marijuana plants and inventory on the date that the RME license is approved. Id. If the applicant intends to maintain both the medical marijuana and RME licenses, the applicant may seek to have both establishments at the same location if the local jurisdiction so allows. C.R.S. § 12-43.3-104(1)(a)(IV). Notwithstanding the foregoing, an applicant that intends to maintain both licenses must maintain physical separation between the two businesses or only sell medical marijuana to persons 21 years of age or older. C.R.S. § 12-43.3-104(1)(a)(V). After January 1, 2014, persons who did not previously have a medical marijuana license may submit their notice of intent to apply for a RME license pursuant to Article 43.3 of Title 12 of the Colorado Revised Statutes. C.R.S. § 12-43.3-104(1)(b)(1)(A). The State Licensing Authority, which is designated by HB 1317 as the Colorado Department of Revenue ("DOR"), must establish a form for the notice and establish an application fee. Id. Effective July 1, 2014, applications for RME Iicensure open to all. C.R.S. § 12- 43.3-104(1)(b)(11). A license issued pursuant to an application received after July 1, 2014 will not be effective until after October 1, 2014. Applicants who file a notice of intent to apply for RME Iicensure after January 1, 2014 but before July 1, 2014, are given priority over those applicants that file after July 1, 2014. C.R.S. § 12-43.3- 104(2)(b)(11)(a). Upon receipt of an RME application, the DOR must act upon the application no sooner than 45 days and no later than 90 days after the date of the application. C.R.S. § 12-43.3-104(2)(b)(1). Applications for RME licenses shall be $500 if the applicant currently holds a medical marijuana business license or $5,000 for applicants that do not currently hold medical marijuana business licenses. C.R.S. § 12-43.4-501. In either case, one half of the application fee is transferred to the local jurisdiction where the retail operation is proposed, provided the local jurisdiction has not prohibited the retail sale of marijuana. Id. The other half of the application fee must be transferred to the marijuana cash fund. Id. Local governments may adopt and impose operating fees in an amount determined by their governing bodies for RMEs located within their jurisdictions. C.R.S. § 12-43.4- 501(3). B. Types of Licenses House Bill 1317 creates the following classes of RME licenses: retail marijuana store licenses; retail marijuana cultivation facility licenses; retail marijuana products manufacturing licenses; and retail marijuana testing facility licenses. Each class of license is discussed below. Retail Marijuana Store License Town of Vail 6/18/2013 Page 2 A retail marijuana store license is issued to persons selling marijuana or marijuana products at retail.' C.R.S. § 12-43.3-402(1)(a). On or before September 30, 2014, retail marijuana stores may only sell marijuana grown in their own licensed cultivation facilities. C.R.S. § 12-43.3-402(1)(c). After September 30, 2014, a store may purchase inventory from a separate licensed retail marijuana cultivation facility. C.R.S. § 12-43.3-402(1)(b). After September 30, 2014, a retail marijuana store may purchase not more than 30% of its on-hand inventory of marijuana from another licensed RME (such as another retail marijuana store) that is not owned by the retail marijuana store. C.R.S. § 12-43.3- 402(1)(c)(II). Similarly, no retail marijuana store or other cultivation facility may sell more than 30% of its total on-hand inventory to another Colorado licensed RME. Id. However, the DOR may grant a temporary waiver if the applicant suffers a catastrophic event for a period not to exceed 90 days. Id. A retail marijuana store cannot accept any marijuana from a retail marijuana cultivation facility unless provided with evidence that all applicable excise taxes have been paid. C.R.S. § 12-43.3-402(1)(d). Further, stores are responsible for tracking all marijuana and products from the point of transfer to the store to the point of sale. C.R.S. § 12-43.3-402(1)(e). Prior to initiating a sale, an employee must verify that the purchaser has valid identification showing that he or she is 21 years of age or older. C.R.S. § 12-43.3- 402(3)(b). A store may not sell more than a '/4 ounce of marijuana and no more than '/4 ounce equivalent of marijuana products during a single transaction to a person who does not have a valid identification showing that the person is a Colorado resident. C.R.S. § 12-43.3-402(3)(a). Retail marijuana stores may only sell marijuana, marijuana products, marijuana accessories, non-consumable products such as apparel, and marijuana related products such as childproof packaging containers. C.R.S. § 12-43.3-402(7)(a). Stores may not sell or give away any consumable product, including cigarettes or alcohol, or edible products that do not contain marijuana, such as sodas, candies or baked goods. Id. Stores may not sell any marijuana or marijuana products that contain nicotine or alcohol if the sale of the alcohol would require liquor licensure pursuant to Colorado law. C.R.S. § 12-43.3-402(7)(b). Retail marijuana stores may not sell retail marijuana or products over the internet or deliver such products to a person not physically present. C.R.S. § 12-43.3-402(7)(c). Stores may use automatic dispensing machines. C.R.S. § 12-43.3-402(8). No marijuana may be consumed on the premises. C.R.S. § 12-43.3-402(9). Retail Marijuana Cultivation Facility License ' Retail marijuana products are defined as "concentrated marijuana products and marijuana products that are comprised of marijuana and other ingredients and are intended for use or consumption such as,but not limited to, edible products, ointments, and tinctures." See C.R.S. § 12-43.4-1.3(18); Colo. Const. art. XVIII § 16(2)(k). Town of Vail 6/18/2013 Page 3 Retail marijuana cultivation facility licenses may be issued to persons who cultivate marijuana for sale and distribution to licensed retail marijuana stores, retail marijuana products manufacturing licensees or other retail marijuana cultivation facilities. C.R.S. § 12-43.3-403(1). On or before September 30, 2014, a cultivation license may be issued only to persons who hold retail marijuana store licenses or retail marijuana products manufacturing licenses. C.R.S. § 12-43.3-403(2)(a). Similarly, prior to September 30, 2014, a cultivation licensee may only transfer marijuana to its affiliated retail marijuana store or retail marijuana products manufacturer, or another affiliated cultivation facility. C.R.S. § 12-43.3-403(2)(b). Under no circumstances may a cultivation facility sell more than 30% of the marijuana it cultivates to another cultivation facility or to a retail marijuana store or products manufacturer not owned by the owner of the cultivation facility. C.R.S. § 12-43.3-403(2)(c).2 Cultivation licenses may be combined in a common area to grow and cultivate marijuana to provide marijuana to more than one licensed retail marijuana store or products manufacturer, if the holder of the cultivation license is also a common owner of each licensed retail marijuana store or licensed retail marijuana products manufacturer to which the marijuana is provided. C.R.S. § 12-43.3-403(2)(d). Cultivation facilities must remit excise tax under C.R.S. § 39-28-101, et seq. C.R.S. § 12-43.3-403(3). Prior to the delivery of any sold marijuana, the cultivation facility must provide evidence that it paid the applicable excise tax. C.R.S. § 12-43.3- 403(4). A cultivation facility must track the marijuana it cultivates from seed or immature plant to wholesale purchase. Id. No marijuana may be consumed on the premises. C.R.S. § 12-43.3-403(6). Retail Marijuana Products Manufacturing License A retail marijuana products manufacturing license may be issued to persons who manufacture concentrated marijuana products and marijuana products that are comprised of marijuana and other ingredients and are intended for consumption. C.R.S. § 12-43.4-404(1)(a). A products manufacturing licensee may cultivate its own marijuana if it obtains a cultivation license, or it may purchase marijuana from a cultivation facility. C.R.S. § 12-43.4-404(1)(b). However, before October 1, 2014, a products manufacturer that also has a cultivation license may not sell any of the marijuana that it cultivates except for the marijuana that is contained in its marijuana products. C.R.S. § 12-43.4-404(1)(c)(1). Retail marijuana products manufacturing licensees must track all marijuana from the point it is transferred or delivered from a cultivation facility to the point of transfer to a retail marijuana store. C.R.S. § 12-43.4-404(1)(b). Further, the products manufacturer may not accept any marijuana from any cultivation facility until evidence that any applicable excise tax has been paid by the cultivation facility. C.R.S. § 12- 43.4-404(1)(d). 2 The requirements of C.R.S. § 12-24.4-403(2) are repealed effective January 1, 2015. It appears that the General Assembly has attempted to limit cultivation facility sales during the initial startup of RMEs to ensure that the supply of marijuana does not exceed the demand required by retail marijuana stores. Town of Vail 6/18/2013 Page 4 Marijuana products must be prepared at a licensed premises that is used exclusively for the manufacture and preparation of marijuana or marijuana products and using equipment that is used exclusively for the manufacture and preparation of marijuana products. C.R.S. § 12-43.4-404(2). An exception to this rule exists if the local jurisdiction allows retail marijuana products manufacturing licensees to share the same premises as a medical marijuana-infused products manufacturing licensee, so long as a virtual or physical separation of inventory is maintained. Id. Products manufacturing licensees may not add marijuana to any food products that hold trademarks, unless the products manufacturer does not state or advertise to the consumer that the final marijuana product contains the trademarked food product. C.R.S. § 12-43.4-404(1)(e)(1). Products manufacturing licensees may not intentionally or knowingly label or package marijuana products in a manner that would cause a reasonable consumer confusion as to whether the product was a trademarked food product or in a manner that violates any federal trademark law. C.R.S. § 12-43.4- 404(1)(e)(1l)-(III). An edible marijuana product may, but is not required to, list ingredients and compatibility with dietary practices. C.R.S. § 12-43.4-404(7). Finally, marijuana may not be consumed on the premises. C.R.S. § 12-43.4-404(5). Retail Marijuana Testing Facility License Retail marijuana testing facility licenses may be issued to a person who performs testing and research on marijuana. C.R.S. § 12-43.3-405(1). The scope of this license will be largely determined when the DOR issues regulations concerning the testing of marijuana. Dual Operations A person may operate a licensed medical marijuana center, an optional cultivation facility, a medical marijuana-infused products manufacturing facility and any RME at the same location if the local jurisdiction permits a dual operation. C.R.S. § 12- 43.4-401(2)(x). If permitted by the local jurisdiction, dual medical marijuana and retail marijuana stores must maintain separate licensed premises, including entrances and exits, inventory, point of sale operations and record keeping.3 C.R.S. § 12-43.4- 401(2)(b)(1). C. State and Local Licensing Procedures HB 1317 reiterates that any local jurisdiction may regulate the time, place, manner and number of RMEs, and may require a local license. C.R.S. § 12-43.4- 104(3). The local regulations must be at least as restrictive as HB 1317 and associated DOR regulations. C.R.S. § 12-43.4-309(1). Further, local jurisdictions may prohibit the operation of RMEs. Id.; C.R.S. § 12-43.4-104(3). 3 The DOR has been directed to promulgate regulations to address the situation where a dual medical and retail storefront sells only to persons 21 years of age or older. C.R.S. § 12-43.3- 401(2)(b)(11). Specifically, the DOR is to determine whether to allow single entrances and exits and virtual separation of the two facilities. Id. Town of Vail 6/18/2013 Page 5 The DOR has seven days after receipt of an RME application to provide a copy of the application to the local jurisdiction, unless the local jurisdiction has prohibited the operation of RMEs. C.R.S. § 12-43.4-301(1). The local government must then notify the state whether the application complies with the jurisdiction's time, place, manner and number of marijuana businesses regulations. Id. A local government may also impose a separate licensing requirement. Id. If the Town has a separate licensing requirement, the Town may schedule a public hearing on the application. C.R.S. § 12-43.4-302(1). Public notice of the hearing must be posted in a conspicuous place on the property and published in a newspaper of general circulation in the county where the premises are located not less than 10 days prior to the hearing. Id. Importantly, even if a local jurisdiction opts not to impose a separate licensing structure, the local jurisdiction may require public notice of the state application to be posted and published. C.R.S. § 12-43.4-301(2). Before the DOR issues a state license, the applicant must file with the DOR evidence of a corporate surety bond in the amount of $5,000. C.R.S. § 12-43.4-303(1). The bond must be conditioned on the applicant timely paying all sales and use taxes due to the state. Id. This bond must be renewed each time the applicant's license is renewed. C.R.S. § 12-43.4-301(3). A license applicant is prohibited from operating a RME without state and local approval, assuming the local government has opted to regulate. C.R.S. § 12-43.4- 304(1). If the applicant does not receive local jurisdiction approval within one (1) year from the date of the DOR's approval, the state license shall expire and may not be renewed. Id. The DOR may refuse or deny a license application, reinstatement or renewal for "good cause." C.R.S. § 12-43.4-305(1). "Good cause" means the licensee or applicant has violated, does not meet, or has failed to comply with any of the requirements of HB 1317; any special terms or conditions that were placed on a license pursuant to an order of the DOR or local licensing authority; or the licensed premises have been operated in a manner that adversely affects the public health or safety of the immediate neighborhood in which the establishment is located. Id. If the DOR denies a license, the applicant is entitled to a hearing on such denial pursuant to C.R.S. § 24-4-106. C.R.S. § 12-43.4-305(2). The denial must be in writing and provide notice of the grounds for the denial at least 15 days prior to the applicant's hearing date. D. General Licensing Requirements An applicant must notify the state licensing authority in writing of the name, address and date of birth of the owner, officer or manager before the new owner, officer or manager begins associating with the RME. C.R.S. § 12-43.4-309(3). Each owner, officer, manager or employee of an RME must pass a fingerprint-based criminal history record check and obtain a identification card before being associated with the RME operation. Id. The following persons are prohibited from being licensees: Town of Vail 6/18/2013 Page 6 1. Anyone not of good moral character (considering the factors in C.R.S. § 24-5-101); 2. Anyone with a history of its officers, directors, stockholders or owners who are not of good moral character; 3. Anyone financed in whole or in part by any other person whose criminal history reflects that he or she is not of good moral character and reputation satisfactory to the licensing authority; 4. Anyone under 21 years of age; 5. Anyone who fails to comply with any of the bonding or fee requirements of HB 1317; 6. Anyone who has discharged a sentence for conviction of a felony in the 5 years immediately preceding the application; 7. Anyone who has discharged a sentence for a conviction of a felony pursuant to any state or federal law regarding the possession, distribution, manufacturing, cultivation, or use of a controlled substance in the 10 years immediately preceding the application or five years from the effective date of HB 1317, whichever is longer, unless the felony conviction is based on a charge of possession or use of marijuana or marijuana concentrate that would not be a felony if the person were convicted of the offense on the date of the application; 8. Anyone who employs another person at a retail marijuana establishment who has not submitted fingerprints for a criminal history record check or whose criminal record history check reveals that the person is ineligible; 9. A sheriff, deputy sheriff, police officer, prosecuting attorney, or an officer or employee of the state licensing authority or a local licensing authority; 10. Anyone who seeks a license for a location that is currently licensed as a retail food establishment or wholesale food registrant; or 11. An owner who has not been a resident of Colorado for at least two years from the date of the application. C.R.S. § 12-43.3-306. When investigating and considering an applicant's criminal history, the state and/or local licensing authority must also consider information provided by the applicant such as evidence of rehabilitation, character references and educational achievements; particularly those items pertaining to the time between the applicant's last criminal conviction and the consideration of the application. C.R.S. § 12-43.3-306(2)(a). An application for a state RME license may not be approved if the application concerns a location that is the same or within 1,000 feet of a location for which, within the two years immediately preceding the date of the application, the DOR denied an application for the same class of license due to the nature of the use or other concern related to location. C.R.S. § 12-43.3-307(1)(a). Similarly, an applicant must establish that it has or will have possession of the premises by ownership or under a lease or other arrangement. C.R.S. § 12-43.3-307(1)(b). Town of Vail 6/18/2013 Page 7 A licensee must personally manage the premises or employ a manager, and the licensee must report the name of the manager to the state and local authorities. A licensee must report any change in manager to the state and local licensing authorities within seven days. C.R.S. § 12-43.4-309(11). All officers, managers and employees of an RME must be residents of Colorado upon the date of their license application. C.R.S. § 12-43.4-309(5). An RME owner must have been a resident of Colorado for at least two years prior to the date of the application. Id. RME licenses may be transferred only upon approval of the DOR and local licensing authority. C.R.S. § 12- 43.4-308(2). The local licensing authority may hold a new public hearing and the guidelines for initial licensure are applicable to the proposed transferee. Id. A licensee must possess and maintain possession of the premises for which the license is issued by ownership, lease, rental or other arrangement for possession at all times during the term of a license. C.R.S. § 12-43.4-309(7). A licensee may move a RME's permanent location to another place in Colorado if the state and local licensing authorities authorize the move. C.R.S. § 12-43.4-309(12). The license must be conspicuously placed in the licensed premises at all times. C.R.S. § 12-43.4-309(8). It is unlawful for any person to distribute marijuana or marijuana products using a mobile distribution center. C.R.S. § 12-43.4-901(4)(h). The DOR requires a complete disclosure of all persons having a direct or indirect financial interest in each RME license. C.R.S. § 12-43.4-312(1). A licensee must report all transfers or changes of financial interest to the state and local licensing authorities and receive prior approval. C.R.S. § 12-43.4-309(10). Reports must be filed with the licensing authorities prior to any transfers of capital stock of any corporation, regardless of its size. Id. E. License Renewals At least 90 days prior to the expiration of an existing license, the DOR will notify the licensee of the expiration by first class mail. C.R.S. § 12-43.4-310(1). The licensee may apply for renewal at least 30 days prior to the expiration date. Id. Upon receipt of a renewal application, the DOR must submit a copy of the application to the local licensing authority to determine whether the application complies with all local licensing requirements. Id. Notwithstanding the foregoing, the DOR may extend the expiration date of a license and accept a late application for renewal if the applicant has filed a timely renewal application with the local licensing authority. Id. Further, either the DOR or the local licensing authority may at their discretion, waive the 30-day renewal time requirement if reasonable grounds are stated. Id. A licensee whose license has been expired for not more than 90 days may file a late renewal application upon the payment of a non-refundable late application fee of $500 to the DOR. C.R.S. § 12-43.4-310(2). A late renewal applicant may continue to operate the RME until the DOR has taken final action to approve or deny the late renewal application, unless the DOR summarily suspends the license. Id. Finally, the DOR may, in its discretion revoke or elect not to renew a license if it determines that the Town of Vail 6/18/2013 Page 8 licensed premises have been inactive, without good cause, for at least one year. C.R.S. § 12-43.4-311. F. Powers and Duties of the State Licensing Authority The DOR has been granted a number of powers and duties under HB 1317. The primary responsibility of the DOR is to grant or refuse state licenses for the cultivation, manufacture, distribution, sale and testing of marijuana and marijuana products. C.R.S. § 12-43.4-202(2)(a). The DOR is further authorized to suspend, fine, restrict or revoke state licenses or issue fines for violations of the statute, after investigation and opportunity for a public hearing. Id.; see generally C.R.S. § 12-43.4-601(1). The DOR must maintain a seed-to-sale tracking system that tracks marijuana from either seed or immature plant stage until the marijuana or marijuana product is sold to a customer at a retail marijuana store. C.R.S. § 12-43.4-202(1). HB 1317 does not specify how the seed-to-sale tracking system should function. See C.R.S. § 12- 43.4-202(2)(b). In addition to the seed-to-sale tracking system, the DOR is charged with promulgating regulations on the following: 1. Procedures for the issuance, renewal, suspension and revocation of licenses to operate RMEs; 2. A schedule of application, licensing and renewal fees; 3. Qualifications for licensure, including a fingerprint-based criminal record check for all owners, officers, managers, contractors, employees and other support staff; 4. Establishing a marijuana and marijuana products independent testing and certification program to ensure, at a minimum, that products sold for human consumption do not contain contaminants that are injurious to the health, to ensure correct labeling and verify THC potency; 5. Security requirements including lighting, physical security, video and alarm requirements; 6. Requirements to prevent the sale or diversion of marijuana and products to persons under the age of 21; 7. Labeling requirements for marijuana and products; 8. Health and safety regulations and standards for the manufacture of marijuana products and the cultivation of marijuana; 9. Limitations on the display of marijuana and marijuana products; 10. Regulation of the storage of, warehouses for, and transportation of marijuana and products; 11. Sanitary requirements; 12. Recordkeeping requirements; Town of Vail 6/18/2013 Page 9 13. Reporting and transmittal requirements for monthly sales and excise tax payments; 14. Enforcement and penalties for regulatory violations; 15. Rules on inspections, investigations, searches, seizures, and forfeitures; 16. Development of identification cards for owners, officers, managers contractors, employees and other support staff of licensed entities; and 17. Signage, marketing and advertising regulations; C.R.S. § 12-43.4-202(3). The DOR must also create a statewide licensure class system for cultivation facilities. The classifications are to be based upon square footage of the facility; lights, lumens or wattage; lit canopy; the number of cultivating plants; and other reasonable metrics. C.R.S. § 12-43.4-202(4)(a). The DOR may establish limitations upon marijuana production based on the class of cultivation facilities, the previous months' sales, pending sales or other reasonable metrics. C.R.S. § 12-43.4-202(4)(b). When limiting marijuana production, the DOR must consider the total current and anticipated demand for adult-use marijuana in Colorado and attempt to minimize the market for unlawful marijuana. C.R.S. § 12-43.4-202(4)(b)(II). G. Disposition of Unauthorized Marijuana, Products and Related Materials A state or local agency is not required to cultivate or care for any retail marijuana or retail marijuana product seized from a licensee. C.R.S. § 12-43.4-602(3). In issuing a final agency decision concerning a disciplinary action, the DOR may specify that some or all of the licensee's marijuana or marijuana products are not "retail" product and therefore an illegal controlled substance. C.R.S. § 12-43.4-602(4). The order may further specify that the licensee has lost any interest in the marijuana or marijuana product. Id. Finally, the DOR may order the destruction of any marijuana or marijuana products, including any containers, equipment, supplies and other property incidental to the illegal contraband. Id. A licensee has 15 days from an order for destruction of property to file a petition to stay the agency action. C.R.S. § 12-43.4-602(5). H. Inspection of Books and Records Each RME licensee must keep a complete set of all records necessary to fully show the business transactions of the licensee. C.R.S. § 12-43.4-701(1). These records must be open at all times during business hours for inspection by the DOR. Id. The licensed premises, including storage areas where marijuana or marijuana products are stored, cultivated, sold, dispensed, or tested are also subject to inspection by the state or local jurisdiction during all business hours and other times of apparent activity. C.R.S. § 12-43.4-701(2). Licensees must maintain records for the current tax year and the 3 immediately preceding tax years. C.R.S. § 12-43.4-701(3). Town of Vail 6/18/2013 Page 10 I. Effectiveness and Sunset Review HB 1317 is now effective, but sunsets on July 1, 2016. Prior to the repeal of the measure, the Department of Regulatory Agencies is to conduct a sunset review to evaluate the continued existence of the program and determine its effectiveness. C.R.S. § 12-43.4-1001. II. House Bill 13-1318 HB 1318 imposes a sales and excise tax on the sale of adult-use marijuana, subject to statewide voter approval on November 5, 2013. C.R.S. § 39-28.8-401. HB 1318 also provides guidelines for the retention of books and records to document the payment of these taxes. C.R.S. § 39-28.8-303. For example, retail marijuana stores must keep business records showing that all marijuana is received from retail marijuana cultivation facilities. C.R.S. § 39-28.8-303(4). A. Special Sales Tax Beginning January 1, 2014, the bill imposes a tax of 10% on the sale of marijuana or marijuana products to a consumer by a retail marijuana store. C.R.S. § 39-28.8-202(1)(a). This 10% sales tax is in addition to the 2.9% state sales tax and any applicable local government sales tax. While the General Assembly approved an initial 10% special sales tax in HB 1318, the November ballot approval would authorize up to a 15% sales tax so that the special marijuana sales tax rate can be increased by the legislature in the future without further ballot approval. See C.R.S. § 39-28.8-202(2)(b). Each fiscal year, 15% of the gross marijuana sales tax revenues collected by the DOR will be apportioned to local governments that have retail marijuana stores within their jurisdictions. See C.R.S. § 39-28.8-203(1)(a)(1). Therefore, a municipality will be apportioned a percentage of the gross revenues on a pro rata basis. Id. By way of example, if the Town represented 10% of the total adult-use marijuana sales tax revenue collected by the DOR, the Town would receive 10% of the 15% local government portion of the gross sales tax revenue. Id. Notably, counties will receive the "local" portion of sales tax revenue when retail marijuana stores are located in unincorporated areas. Id. Distribution of the local government portion of the sales tax will be paid monthly, no later than the 15th. C.R.S. § 39-28.8-203(1)(a)(111). Importantly, the special sales tax does not prevent local governments from imposing, levying and collecting any other fee or tax upon the retail sale of marijuana or marijuana products or upon the occupation or privilege of selling marijuana products. See C.R.S. § 39-28.8- 203(1)(a)(VI). However, any such additional local sales tax must be self-collected by the local government. Id. B. Excise Tax Beginning January 1, 2014, a 15% excise tax will be imposed on the first sale or transfer of unprocessed marijuana by a cultivation facility. C.R.S. § 39-28.8-302(1)(a). The excise tax is in addition to the sales tax imposed by C.R.S. § 39-28.8-203. Id. The excise tax will be imposed when the cultivation facility first sells or transfers the Town of Vail 6/18/2013 Page 11 marijuana to a retail marijuana product manufacturing facility, a retail marijuana store or another retail marijuana cultivation facility. Id. The excise tax is not imposed on the sale or transfer of unprocessed marijuana by a cultivation facility to medical marijuana centers. C.R.S. § 39-28.8-302(2). III. Senate Bill 13-283 SB 283 addresses miscellaneous issues relating to marijuana sales and cultivation. Most importantly, SB 283 prohibits a person from knowingly using or consuming marijuana or possessing an open container while in the passenger area of a motor vehicle that is on a public highway or right-of-way. C.R.S. § 42-4-1305.5(2)(a). An 'open marijuana container" is defined as a receptacle or marijuana accessory that contains any amount of marijuana and that is: (1) open or has a broken seal; (2) the contents of which are partially removed; or (3) there is evidence that marijuana has been consumed within the vehicle. C.R.S. § 42-4-1305.5(1)(c). The open container law does not apply to back seat passengers when: (1) the vehicle is designed, maintained or used primarily for the transportation of persons for compensation; (2) the back seat passenger is in the living quarters of a house coach, house trailer, motor home or trailer coach; (3) the possession is in the area behind the last upright seat of a vehicle not equipped with a trunk; or (4) the possession is in an area not normally occupied by the driver or a passenger in a vehicle that is not equipped with a trunk. C.R.S. § 42-4- 1305.5(2)(b). Notably, SB 283 recognizes that home rule municipalities may adopt ordinances on open containers that are no less restrictive than state law. C.R.S. § 42- 4-1305.5(3). SB 283 also provides that: 1. Local governments may prohibit the use of flammable gases in home marijuana cultivation. C.R.S. § 9-7-113. 2. Contracts pertaining to lawful activities authorized under Amendment 64, Article 43.4 of Title 12, C.R.S., and all associated regulations are not void or voidable as against public policy. C.R.S. § 13-22-601. 3. Marijuana accessories are excluded from the definition of "drug paraphernalia." C.R.S. § 18-18-426(2). 4. Marijuana smoke is included within the Colorado Clean Indoor Air Act prohibition on smoking in public places. C.R.S. § 25-14-203(16). 5. Expenditures on marijuana that would otherwise be eligible for federal income tax deductions are not eligible, because marijuana is a controlled substance under federal law. See C.R.S. §§ 39-22-104; 39-22-304. 6. The medical marijuana license cash fund is converted to the "Marijuana Cash Fund," and directing all license fees and taxes relating not distributed to local governments to be deposited into such fund. C.R.S. § 12- 43.3-501. Town of Vail 6/18/2013 Page 12 Town of Vail 6/18/2013 Page 13 TOWN OF V�I�L VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: An appeal, pursuant to Section 12-3-3, Appeals, VAiTown Code, of the Town of Vail Planning and Environmental Commission's approval, with conditions, of a development review application for the review of a variance from Section 12-713-15, Site Coverage, Vail Town Code, pursuant to Chapter 12-17 Variances, Vail Town Code, to allow for the review of a major exterior alteration or modification, pursuant to Section 12-713-7, Exterior Alterations and Modification, Vail Town Code, to allow for the construction of additions, located at 225 Wall Street/Lot B, Block 5C, Vail Village Filing 1, and setting forth details in regard thereto. PRESENTER(S): Warren Campbell ACTION REQUESTED OF COUNCIL: The Vail Town Council is asked to table this item to the July 2, 2013, public hearing, without discussion. 6/18/2013 TOWN OF V�I�L VAIL TOWN COUNCIL AGENDA MEMO MEETING DATE: June 18, 2013 ITEM/TOPIC: Adjournment (8:40 p.m.) 6/18/2013