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Front Range Classifieds, ORDINANCE NO. 27-2013 AN ORDINANCE OF THE TOWN OF ERIE, COLORADO EXTENDING UNTIL DECEMBER 31, 2014 THE EXISTING MORATORIUM ON THE ON THE SUBMISSION, ACCEPTANCE, PROCESSING AND APPROVAL OF APPLICATIONS AND THE LICENSING, PERMITTING, ESTABLISHMENT OR OPERATION OF ANY RECREATIONAL MARIJUANA BUSINESS THAT SELLS, CULTIVATES, MANUFACTURES, PREPARES, PACKAGES, PURCHASES, TESTS, OR OTHERWISE PROVIDES FOR OR ALLOWS FOR THE USE OF MARIJUANA OR MARIJUANA PRODUCTS PURSUANT TO AMENDMENT 64 APPROVED BY THE VOTERS OF THE STATE OF COLORADO AT THE NOVEMBER 6, 2012, GENERAL ELECTION, AND CODIFIED AS ARTICLE XVIII, SECTION 16 OF THE COLORADO CONSTITUTION; AND, DECLARING AN EMERGENCY THEREFORE. WHEREAS, at the November 6, 2012, general election the voters of the State of Colorado adopted Amendment 64 of the Colorado Constitution ("Amendment 64"), which is codified as Article XVIII, Section 16 of the Colorado Constitution; and WHEREAS, Amendment 64 permits persons twenty-one years of age and older to possess, use, display, purchase or transport one ounce or less of marijuana, or marijuana accessories, to grow limited amounts of marijuana and manufacture and sell marijuana accessories; and WHEREAS, Amendment 64 also provides for the establishment of marijuana establishments, which include cultivating, testing and product manufacturing facilities, and retail marijuana stores; and WHEREAS, Amendment 64 further provides that local governmental entities may enact ordinances and regulations governing the time, place, manner and number of marijuana establishments and that by October 1, 2013, each locality identify by ordinance or regulation a local recreational marijuana licensing entity; and WHEREAS, on December 10, 2012, Governor John Hickenlooper established a Task Force regarding the implementation of Amendment 64 whose goal was to assist the legislature and the Department of Revenue to enact efficient and effective laws and regulations that provide for the implementation of Amendment 64; and WHEREAS, the Task Force identified areas subject to the state's regulation which include, but are not limited to, blending medical marijuana regulation with recreational marijuana, consideration of state operated recreational dispensaries, impact of state licensing upon local authority, regulation of personal cultivation, definition of "openly and publicly," regulatory framework for all types of consumption, pre-emption of local regulations and grower regulations; and WHEREAS, in addition to awaiting direction from the state, because marijuana is a controlled substance under federal law, both state and local authorities were and remain uncertain as to what action, if any, the federal government may pursue regarding "recreational marijuana businesses," which includes, but is not limited to, cultivation, product manufacturing and testing facilities along with retail marijuana stores, and other uses of property for the commercial consumption of marijuana and marijuana products; and WHEREAS, absent any definitive direction or guidelines from either the state or federal government regarding the regulation of recreational marijuana businesses the Town could not determine its position regarding what if any regulations or prohibitions, including land use regulations it may or should impose on recreational marijuana businesses; and WHEREAS, therefore on January 22, 2013, the Town enacted Ordinance No. 07-2013 which imposed a moratorium until October 1, 2013, on the submission, acceptance or processing of applications and the licensing, permitting, establishment or operation of any recreational marijuana business that sells, cultivates, manufactures, prepares, packages, purchases, tests, or otherwise provides for or allows the use of marijuana or marijuana products pursuant to Amendment 64, as reasonable and necessary for the Town to develop, if it so chose, its own licensing scheme for recreational marijuana businesses and have an opportunity to investigate, develop, adopt, implement, and amend such regulations as necessary to protect the public's health safety, and welfare; and WHEREAS, though the state in accordance with Amendment 64 was to have adopted regulations governing retail marijuana establishments by July 1, 2013, it had by such date merely promulgated "Emergency Rules" regarding the regulation of recreational marijuana, and does not plan to have "Final Rules" until October 1, 2013; and WHEREAS, in accordance with HB-1317, enacted at the last legislative session, the state will begin accepting recreational marijuana licenses from current lawful medical marijuana establishments on October 1, 2013, and issuing licenses commencing January 1, 2014; however, it will not start accepting recreational marijuana license applications from other applicants until July 1, 2014, and not start issuing such licenses until October 1, 2014; and WHEREAS, though SB-283, enacted at the last legislative session, addresses some issues concerning the regulation of recreational marijuana, it's scope was not as extensive as many expected for it failed to address issues such as the regulation of other recreational marijuana businesses such as membership clubs, or provide regulatory guidance by defining certain terms set forth in Amendment 64; and WHEREAS, SB-283 also directs the Governor to establish and designate state agencies to work with private groups to address unresolved issues concerning the cultivation and laboratory processes for recreational marijuana and to implement an oversight committee concerning education on marijuana use, cultivation, and its impact upon youth; and WHEREAS, the state's funding for its licensing and other administrative duties for recreational marijuana is uncertain as it is dependent upon the passage and collection of revenues obtained from a ballot question at this November's election calling for a 15% excise tax and 10% sales tax on recreational marijuana; and WHEREAS, as a result of the uncertainty caused by the state's failure to address many of the issues brought forth by the task force, the lack of comprehensive licensing rules and regulations that have been fully implemented, assessed and amended as necessary, skepticism about the states' ability to regulate recreational marijuana in light of the fact that the duties will be performed by the Department of Revenue, whose shortcomings regarding medical marijuana are well documented, the still unresolved matter of federal intervention and the concerns regarding the state's funding of its recreational marijuana licensing duties, many municipalities and counties have either opted out of permitting recreational marijuana businesses or enacted or extended moratoriums on such businesses; and WHEREAS, given all the uncertainties described herein, the Town is in the untenable position of being required to determine its position regarding what, if any, regulations or prohibitions, including land use regulations, it may or may not impose upon recreational marijuana businesses; and WHEREAS, the extension of the current moratorium until December 31, 2014, on the submission, acceptance or processing of applications and the licensing, permitting, establishment or operation of any recreational marijuana business that sells, cultivates, manufactures, prepares, packages, purchases, tests, or otherwise provides for or allows the use of marijuana or marijuana products pursuant to Amendment 64 is reasonable and necessary for the Town to monitor and assess the Department of Revenues regulatory scheme, the initial operation and regulation of recreational marijuana businesses in other jurisdictions, the outcome and impact of the state and local tax ballot questions, and for the Town if it so chooses to develop, investigate, analyze and amend such regulations as necessary to protect the public's health safety, and welfare. NOW, THEREFORE, BE IT ORDAINED, BY THE BOARD OF TRUSTEES OF THE TOWN OF ERIE, COLORADO, AS FOLLOWS: Section 1 . Recitals Incorporated. The foregoing recitals are incorporated herein and made a part of this Ordinance. Section 2 . Moratorium Extended. Upon adoption of this Ordinance the Moratorium imposed by Ordinance 07-2013, which is set to expire October 1, 2013, shall be extended until December 31, 2014, and the Moratorium shall thus remain in place on the submission, acceptance or processing of applications and the licensing, permitting, establishment or operation of any recreational marijuana business that sells, cultivates, manufactures, prepares, packages, purchases, tests, or otherwise provides for or allows the use of marijuana or marijuana products pursuant to Amendment 64, approved by the voters of the State of Colorado at the November 6, 2012, general election and codified as Article XVIII, Section 16 of the Colorado Constitution. Section 3 . The Board of Trustees hereby finds, determines and declares that it has the power to adopt this Ordinance pursuant to the Erie Municipal Code, and Colorado Revised Statutes; the Local Government Land Use Control Enabling Act, Article 20 of Title 29, C.R.S.; Part 3 of Article 23 of Title 31, C.R.S. (concerning municipal zoning powers); Section 31-15-103, C.R.S. (concerning municipal police powers); Section 31-15-401, C.R.S. (concerning municipal police powers); and, Section 31-15-501 (concerning municipal power to regulate businesses), and further declares that the moratorium shall be broadly interpreted to prevent and prohibit the establishment and operation of any recreational marijuana businesses. Section 4 . During the pendency of the Moratorium, Town staff shall review, investigate, monitor and analyze laws and regulations enacted by the state and other local governments and actions of the federal government regarding recreational marijuana businesses and advise the Board of Trustees of the same and, if so directed by the Board of Trustees, prepare ordinances and or regulations with respect to the time, place, manner, number and licensing of recreational marijuana businesses or prohibition such businesses, as the case may be. Section 5 . For the sole purpose of complying with the Section 16(5)(e) of Article XVIII of the Colorado Constitution, which requires that a locality identify the local entity responsible for processing recreational marijuana applications, and without waiver or any impairment of the Town's powers and ability to prohibit or otherwise regulate recreational marijuana businesses or enact and extend this Moratorium, the Board of Trustees designates the Town Clerk as the entity that that would be responsible for recreational marijuana licensing duties in the event the Town should decide to permit the establishments authorized by Amendment 64. Section 6 . Reason for Emergency. The Board of Trustees of the Town of Erie hereby finds, determines, and declares that an emergency exists and that this Ordinance is necessary for the immediate preservation of public property, health, welfare, peace or safety. The Board of Trustees finds, determines and declares that passage of this Ordinance is necessary in order that the submission, acceptance, processing and approval of any application for a Town permit or license relating to the operation of a recreational marijuana business or establishment as may be allowed pursuant to Amendment 64 are postponed until the Town has had a reasonable opportunity to determine: (i) the extent of the Town's regulatory authority over such recreational marijuana businesses and establishments; and (ii) what regulations, if any, should be imposed by the Town upon such recreational marijuana businesses and establishments. Failure to immediately impose the moratorium provided for in this Ordinance will potentially allow recreational marijuana businesses and establishments to be located in areas that would conflict with the Town's comprehensive land use plan and zoning; be inconsistent with surrounding uses; otherwise be detrimental to the public health, safety and welfare; and, potentially allow acquisition of certain legal rights with respect to recreational marijuana businesses and establishments before the Town has had the reasonable opportunity to consider prohibition or appropriate regulations thereof. In addition, the Board of Trustees of the Town of Erie hereby finds, determines, and declares that an emergency exists and that this Ordinance is necessary pursuant to Amendment 64, as the Town is required to adopt and have in place an ordinance by October 1, 2013 complying with the language of Amendment 64. The Board of Trustees further determines that the adoption of this ordinance as an emergency ordinance is in the best interest of the citizens of the Town of Erie. Section 7 . Emergency declared. For the reason stated herein, the Board of Trustees for the Town of Erie, Colorado hereby declares an emergency to exist concerning the subject matter of this Ordinance and its immediate effect is necessary in order to preserve public property, health, welfare, peace, safety, and the financial well being of the Town. Section 8 . Severance Clause. If an article, section, paragraph, sentence, clause or phrase of this Ordinance is held to be unconstitutional or invalid for any reason, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The Board of Trustees hereby declares that it would have passed this Ordinance and each part or parts thereof, irrespective of the fact that any one part or parts may be declared invalid or unconstitutional. Section 9 . Immediate Effect. The Board of Trustees of the Town of Erie finds and concludes that this Ordinance is necessary for the immediate preservation of the health, safety, and welfare of the citizens of the Town of Erie to protect the citizens of the Town of Erie and, therefore, this Ordinance shall be effective immediately upon its approval by the Board of Trustees. Section 10 . Repeal. All other ordinances or parts of any ordinances or other Code provisions in conflict herewith are hereby repealed. Section 11 . Effective Date. The within Emergency Ordinance shall take effect immediately upon adoption. INTRODUCED, READ, APPROVED AS AN EMERGENCY ORDINANCE, ADOPTED, AND ORDER PUBLISHED IN FULL BY THE BOARD OF TRUSTEES OF THE TOWN OF ERIE THIS 27TH DAY OF AUGUST, 2013. PUBLISHED IN FULL ON THE 4TH DAY OF SEPTEMBER, 2013. TOWN OF ERIE, COLORADO A Colorado Municipal Corporation s/s: Joseph A. Wilson, Mayor s/s: Nancy J. Parker, Town Clerk Published: Colorado Hometown Weekly on September 4, 2013 - Ad #5599232
