UPDATE, 10:01 a.m.:
We caught up with Stark outside of City Hall. He says his hearing was postponed due to his attorney being out of state, and will appear at Planning Commission's Feb. 20 meeting.
"We'll appeal this one all the way to the Supreme Court if we have to," he says. "If we lose this one, we'll appeal it to City Council. If we lose that one, we'll appeal it to the El Paso County courthouse. If we lose that one, we'll appeal it to the Colorado Supreme Court."
Code enforcement administrator Tom Wasinger also followed-up with the Indy
"At this time, I really cannot add anything or comment on the case because the alleged zoning violation is still under investigation," he writes in an email. "I can tell you that Code Enforcement is working closely with City Planning on this matter and perhaps Planning Director, Peter Wysocki, could shed more light on the issues surrounding the zoning requirements of a permitted use versus an illegal use."
——— ORIGINAL POST ———
Though Studio A64
has been operating in a downtown space above the Triple Nickel Tavern since February of last year, the city of Colorado Springs recently notified it that "the illegal use must cease and desist," because it doesn't conform to the downtown zoning.
The first notification came in a Nov. 21 letter to property owner Ken Brady
, which was appealed Dec. 2 by Studio A64 owner KC Stark
through his attorney, Charles Houghton
. The hearing for that is happening this morning.
"A marijuana smoking facility is not defined, permitted or conditionally permitted by City Code, Chapter 7 or the Downtown Colorado Springs Form-Based Code," reads a notice to the Planning Commission
, which is hearing the appeal. "According to the owner, Studio A 64 should be considered a 'private club' as patrons must pay to enter and bring their own marijuana to smoke it at the facility. Drinks and snacks are also sold."
Here's the basis for the appeal:
"The base assumption behind the Notice and Order is the erroneous presumption that just because a particular use is not expressly mentioned in a Zoning Code, that is it 'illegal,'" reads the appeal. "That notion has been rejected by Colorado case law. It is simply not possible for any Zoning Code to outline any and all possible uses. Due to changes in law, social norms, and technological progress, new uses that had previously never existed are created every day. Just because a use is not expressly mentioned in a zoning code does not make it 'illegal.' It may be a non conforming use, but is it not illegal. Accordingly, the Notice and Order is clearly contrary to law.
"If the City Council desires to make the use illegal, it would have to pass an ordinance, amending the Zoning Code, specifically making it illegal. There is no such ordinance in place. If such an ordinance were passed, this particular use would be an existing non-conforming use and would be allowed to continue to operate under Colorado law. In short, it would be grandfathered and could not be closed."
The cannabis social clubs — of which there are three others the Indy
knows about, including Speak Easy Vape Lounge
, Club 710
and The Lazy Lion
— are one of the only vestiges of Amendment 64
to be found in Colorado Springs, since City Council opted out of recreational marijuana stores in July 2013.
We've contacted Tom Wasinger
, code enforcement administrator, and Planning Department director Peter Wysocki
for more information, and will update this post when we know more.